ORIGINAL ATLANTA DIVISION FILED )NC~FR}('$( U ~ ~.R`

Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 1 of 296 f

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OE GEORGIA ORIGINAL ATLANTA DIVISION FILED )NC~FR}('$( U ~ ~.r`. q~i,ti DARRON EASTERLING, 1003 Plaintiff, Civil Action dpi e~. ; ;1R S v . 1 :00-CV-171E L WORLD CHAMPIONSHIP WRESTLING, JURY TRIAL DEMANDED INC ., TURNER SPORTS, INC . and TURNER BROADCASTING SYSTEM, INC .

Defendants .

PLAINTIF'F'S NOTICE OF FILING APPENDIX

Plaintiff, DARRON EASTERLING, hereby serves notice that he is filing herewith in the above-styled case an Appendix containing copies oz relevant deposition testimony and exhibit documents in support of his Response To Defendants' Motion For

Summary Judgment filed with this Cou

This Z4 day of --I'~7~(jWn ~~ 3 . / Yi'

Ca'ry chter Georg~ Bar No . 382515 Charle J . Gernazian Georgia Bar No . 291703 Michelle M . Rothenberg-Williams Georgia Bar No . 615680 MEADOWS, ICHTER 6 BOWERS, P .C . Fourteen Piedmont Center, Suite 1100 3535 Piedmont Road Atlanta, GA 30305 Telephone : (909) 261-6020 Telecopy : (404) 261-3656 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 2 of 296

CERTIFICATE OF SERVICE

This is to certify that I have this day served all parties

in the foregoing matter with the foregoing Plaintiff's Notice of

Filing Appendix by depositing a copy of same in the United States

Mail, postage prepaid and properly addressed as follows :

Eric Richardson Evan Pontz Troutman Sanders LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, Georgia 30308-22165

This 2~~ day of Februak~, coos .

Georq~a Bar No . 382515 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 3 of 296 r

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

DARRON EASTERLING,

Plaintiff, Civil Action File No . : v . 1 :00-CV-1716 (CC)

WORLD CHAMPIONSHIP WRESTLING, JURY TRIAL DEMANDED INC ., TURNER SPORTS, INC . and TURNER BROADCASTING SYSTEM, INC .

Defendants .

APPENDIX OF EXHIBITS AND DEPOSITION EXCERPTS

A . Declaration of Darron Easterling

B . Plaintiffs' Exhibit No . 2

C . Plaintiffs' Exhibit No . 48

D . Declaration of J . P . Snakovsky

E . Declaration of Moses Williams

F. Plaintiffs' Exhibit No . 49

G . Plaintiffs' Exhibit No . S

H . Excerpts of Deposition Transcript of William Boulware

I . Excerpts of Deposition Transcript of Tony Carr

J . Declaration of Pamela Collins

K . Declaration of George Grace

L . Carr Memorandum of Law In Support of Defendants' Motion

for Summary Judgment Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 4 of 296

M . Ross Memorandum of Law In Support of Defendants' Motion

fir Summary Judgment

N . Supplemental Report of Dr . David Rasmussen

0 . Harman Order For Service of Report and Recommendation ;

USDC, NDGA CAFN 1 :00-CV-3375-WBH

P . Plaintiffs' Exhibit No . 75

Q . Plaintiffs' Exhibit No . 76

R . Plaintiffs' Exhibit No . 64

S . Plaintiffs' Exhibit No . 44

T . Plaintiffs' Exhibit No . 10

U . Plaintiffs' Exhibit No . 15

V . Excerpts of Deposition Transcript of Pez Whatley

W . Declaration of Harrison iv'orria

X . Plaintiffs' Exhibit No . 5 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 5 of 296

EXHIBIT / ATTACHMENT

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AFFIDAVIT OF DARRON EASTERLING

STATE OF GEORGIA COUNTY OF FULTON

Before the undersigned officer appeared Darron Easterling, who, after being placed under oath, says and deposes as follows :

1 .

My name is Darron Easterling . I am African-American . I am over eighteen (18) years of age, and I am otherwise competent to make this affidavit .

2 .

In or about 1997, I attended a wrestling try-out at the WCW training facility, known as the Power Plant . At the conclusion of the tryout, I was invited to join the WCW's training program .

3 .

I was evaluated three times during training and was told that I did a good job by Jody Hamilton and Mike Wenner . I was encouraged to work and was told that if I was dedicated, I would succeed . No one at WCW ever told me that I was clumsy or that my skills were inadequate to become a professional wrestler . On the contrary, all of the feedback I received was positive and favorable .

4 .

During an average week, I spent approximately 15 hours training and another 12 to 13 hours cleaning, taking mats off the rings, putting them back on, cleaning the Power Plant, Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 7 of 296

loading and unloading trucks with wrestling rings and equipment, adjusting equipment, and Uhe 'Like .

5 .

While at the Power Plant, only blacks and white "rookies" were required to clean the facility . If white and black wrestlers were training and a truck arrived to be loaded or unloaded, only the black wrestlers would be directed to interrupt their training and load or unload the truck .

6 .

While at the Power Plant, I heard black wrestlers referred to as "the `N' word, or monkey or chimp" or similar names .

7 .

While at the Power Plant, white and black wrestlers were segregated for training purposes . The white wrestlers received more advanced training, and black wrestlers were not advanced beyond the basics . This separation was based purely on race and not on skill level . If there was any difference in skill level between the two groups, it was due to the fact that the trainers did not teach advanced techniques to the black wrestlers .

8 .

During the time I was at WCW, I regarded the work environment as being hostile to blacks . The use of racial slurs, the unequal treatment of blacks in their work opportunities, the fact that black wrestlers were called upon to do work that white wrestlers were not required to do all made Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 8 of 296

('k fIt blacks feel they were unwelcome and wanted only for the purpose of tamnorary exploitation at WCW . This hostile work environment discouraged me and made me worry that I would never be given a chance to succeed at WCW . I believe that, while I always did my best at WCW, the environment there had a negative effect upon my performance over time .

9 .

In March 1999, WCW moved the Power Plant to Log Cabin Drive in Smyrna, Georgia . As I understand it, WCW decided it would reduce the number of trainees at the Power Plant and to place those wrestlers under contract . As for the rest of the wrestlers, they were terminated after they helped to move the

Power Plant operations .

10 .

It was clear during based upon the trainees that WCW promoted that WCW could make a wrestler out of trainees with average athleticism .

11 .

At the time I was terminated, white wrestlers of lesser talents were given contracts . For example, Bret Yokely was given a contract at or about the same time I was let go . There was nothing special about Mr . Yokely's wrestling abilities . In

fact, despite the fact that he received more advanced training than I received, I believe I was more technically capable than

Mr . Yokely . Similarly, Alan Funk began to receive advanced Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 9 of 296

training within a week or so of arriving at the Power Plant . He

. . was .,_ .. uy :ii: e=:~ ::g quicqu~c~kl y ut y the~ i."~a~ . .cr ., .b.°C?.USo they, apparently made the decision to give him a push very early on .

Chuck Palumbo was also given a contract at or about the time I was terminated . There was nothing special about Mr . Palumbo's wrestling skills, and I was bigger and more athletic than Mr .

Palumbo .

Darron EasterlingI ~ Executeda-~i-/" on (Date) ~

Sworn and subscri~b~ before me, this Aday

otary Public

^J+RY~ L;.P1RE5

Q CgORGIA.Y002 .^i F.'.13.24 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 10 of 296

EXHIBIT / ATTACHMENT

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WCW " WWF " ECW " Indies " InYI 7 Miller Time "O~'e-ec~D~

Home Exclusive interview with 'tire sGeldaniacs

ScoopThis SF's head writer Vince O Bombshells R USS PLAINTIFFS September 30, 1999 ExHIerT Toys Rankings By Ben Miller oZ Photos WrestIeLine/WrestIeManiacs

Audio BEN : The D20D1° you closed the door on , i_ don't- Schedules r,ant to ask for names, have trey ended up Columns showing up on ECW or WCW, or do they end up Almanac saying on the fringe of tie business for the same reason you didn't want them? Forums Chat RUS50 : ~lo, they wind up showing ir~ ECM`! and Store WCW . I thing that's why you have such chaos, in WCW's locker room . When there is wow Ma gy a free agent out there, one of the first things we Email Us look at is that there is such peace and harmony and a family feeling in our locker room, if we Federations bring this guy in, how is it going to affect that? If wcw it's going to aff° :c that in a negative way, we don't bring there in . These guys definitely get WWF picked up in ECV`1 and 4VC\;Y . Like I said, 1 think ecw that's part of the reason why you have so many Indies problems in WCW . ?nt'I " BEN : T~,vo guys Thai have been critical of you at various t~mzs are Dave Meltzer who obviously writ--5 the Wrestling Observer and Bruce

f1LCp ://WWW .WreSLIeIIf1e .COf71/CO . . ./fTlIIlef--;ijUyyD .f1L lU/1//yy Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 12 of 296

WrestleManiacs - WrestIeLine is your Professio . . Page 2 of 10

.~-'~~iiar.~i~ii . vv ~yvii i~aV, c'~i'y' vN~~~v~ v~ i~v.~..° guys?

RU550 : Well yeas, it just rea!!y bothers me . First or" ail, you've got to understand something, I never in my life claimed to be a great journalist, because the way I virit2 . . . I don't try to write to impress people . I don't try to write in a style like look at me, I'm smarter than you . I try to write in a styli that peec!e . . . the common guy - the wrestling fan will understand . That's how I try to write, and that's the most important thing to me - that I write in a way that our fan is going to understand . I am not above anybody, and another thing too, every one of my cciumns, even if it is pro-b'/WF, I write what I truly believe in my heat . . Ncbcry tills me to write my column, if I unite it pos~Uve, or negative, whatever the case may b2, Vince McMahon lets it go, then I write about what I truly, truly feel . And I try to vvrite the truth . J The tying that just bothers me, primarily about Dave Nleitzer, I just feel he thinks he's better than everybody else . I think he tries to talk down on people like he knows everything, and the reality of the situation is that Dave Nleltzer doesn't know shit . Because all Dave M2ltzer'S information is Though there are some second hand things Russo can't talk information, and about, like the Owen Hart lawsuit, he believes in whoever giving him is telling readers as much that information is as possible . (WOW) putting their tittle spin nRp ;//WWW .WfE'SCIeIIf1e .COfll/CO . . ./f71111erJ-jUyyD .f1L lU/1//JJ Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 13 of 296

t WrestIeManiacs - WrestIeLine is your Professio . . Page 3 of 10

.. il . . . L __ ... ~ .. . a i iu wi :ci ~c~ y uu know me - I'm there! I know vihat's going on . I'm behind the scenes . I talk to these guys on a daily basis . I know what's true . I know what's bullshit, and I tell the reader as much as I possible can .

Of course there are some things I can't talk about. I even mentioned to you like the Owen situation - anything involving a lawsuit, I can't talc about, you know . But it just really bothers me when you have a guy who feels that he's above it all, when the reality is he's getting the information second hand, and some of it right, and some of it is absolutely bullshit, and he doesn't have a clue as to what's right and what's ,ullshl~. . And that's what bothers me . Trey can be as critical as they want to be, but I would much rather nave a job and be in a position " where I know what I'm talking about rather than have to rely on gossip .

BEN : I see where you're coming prom . Obviously those guys have to know someone in the company. If you ever found our that someone was a mole for one of these newsletters or something like that, would you get mad at -them?

RUSSO: I don't necessarily know if they coo know someone in the company, and the only reason I say that is because on so many occasions, the information is wrong . It's just flat wrong. I remember one time Dave Meltzer had something in there about me, a couple of years ago, it vas rumored that one of the WCW wr=_s~!e : s pied in a car crash . . . that black guy . . . " that Pit guy ---

BEN : Oh yeah . Craig "Pitbull" Pittman . f1CCp :// www .wresrieiine .COfl'1/CO . . ./fillller` .iU`JJD.f1L lU/l!/yy Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 14 of 296 f WrestIeManiacs - WrestIeLine is your Professio . . Page 4 of 10

RUSSO: Yeah, the next thing I know I'm reading in hteltz2r's newsle!*_er that Russo was on the phone spreading this rumor. Just stuff like that . I can't fathom that they know somebody on the inside with credibility, because as I said, yeah half of their stuff is right on the money, and the other half is totally bullshit.

BEN : I see where you're coming from, but wrestling is a business obviously, where in the past, more than in the present, it's tough to get the truth. In my defense, because I'm someone who reads those newsletters, you don't know where the truth is coming from . It's hard to tell som2mes.

RUS50: I Gon't necessarily agree wits you on that, "t-l2ceuse ruby is it sough to get the truth? 1t " Dave hteltzer ever called me, or a Wade Keller ever called me, or if any of those guys ever called me, I'm going to tell them the truth, and I'm going to tell them what I know . I have nothing to hide . If they ask me a question, I'm going to tell them the answer to the question . But the difference is, if they ask you a question, and you honestly don't know the answer to it, then you're a liar . Like you asked me about the IPO. I honestly don't know anything about that, and quite frankly, I really don't care . My plate is so full with writing television, I don't know about that . But to a hleltzer or a Keller, if they ask me that same question, and I answer it the same way, well I'm lying, and they're not getting the truth from me .

BEN : : ;;^d°-stand, but to the average fan, it's " net like you can get tie entire truth like on the some of the uglier side of she business, like with death ; and stuff like that . It's not like you can nRp ://www .wresrieiine .com/co. . .imiiiery-juyyo .nr 11111 11%49 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 15 of 296

WrestIeManiacs - WrestIeLine is your Professio . . Page S of 10

IAA ; 1~1 `~J .1 c . .-1. .., ;~~ afro ~ `icr~ii,Ari itinararv of wha` was at Brian Pillman's bedside . So somet.1mes you have to go to outside sources to find the truth .

RU550: Right.

BEN : This is something I've always wanted to see in American professional wrestling, have you guys, the TV writing team, ever thought of having the title like All Japan Pro Wrestling where there's no gimmick matches, no run-ins, no count outs, it's just two guys in a wrestling match . And not every match to be like that, because I know how it can get boring and monotonous, but just one title ---

RUSSO : I'm going to tell you something right

novi that you will absolutely iIvy agree vVi~iif vui " I've been a wrestling fan my whole life and I will live and die by this - it is hard enough, believe me I write this shit, it is hard enough to get somebody over . You will never ever, ever, ever, ever see the Japanese wrestler or the Mexican wrestler over in American mainstream wrestling . And the simple reason for that is, even myself, I'm ar~ American, and I don't want to sound like -a big bigot or a racist or anything like that, but I'm an American . . . if I'm watching wrestling here in America, I don't give a shit about a Japanese guy . I don't give a shit about a Mexican guy . I'm from America, and that's what I want to see . Now there are the smart fans that love that type of shit, like you .

BEN : Yeah, I really like AN Japan .

" RUS50 : Which is cool, but the reality of it is, that's a small minority of our audience .

BEN : But I'm nor talking so much about the fact f1CCp ://WWW . wresrleline .COfTI/CO . . ./ miiiery .Juyyo .flL lU/1//yy Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 16 of 296

WrestIeManiacs - WrestIeLine is your Professio . . Page 6 of 10 i inat you would have to use 1-he guys irorn Japan, I'm just saying, two guys who I think are good rvrestlers, maybe D'Lo Brown and Jeff Jarrett, who maybe don't have the interview skills or the charisma of a Rock or Steve Austin, but if you put them out there in longer matches where they could show their in ring talent ---

RUSSO: What do you call a longer match?

BEN: I don't know, maybe 12 minutes?

RUS50 : There is no way on television ---

BEN : Not on television . I mean more PPV, and on television it ~.vou!d 6-8 minutes . I don't think marches on television outside of the main event J " ~~ s hould moreIIOI° :l1than on minutes .

40 RUS50 : But the thing you don't understand is, and I car tell you first hand, the way television is, and how short the matches are on TV - what we've done row basically is we've basically trained the audience . It's crash N. It's in and out. What's the Knish? Let's get to the next thing .

BEN : Absolutely .

RUS50 : That's the way we've trained the fan, and I've got to tell you, I don't know how many PPVs you go to, but a couple of years ago when I wasn't writing the PPVs, and we just really started this trend with the way the business is now, we would have 15, 20, 25 minute matches, because it was the PPV, 5 minutes in, people 40 were sitting on their hands . BEN : That's true -

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i WrestieManiacs - WrestIeLine is your Professio. . Page 7 of 10

RUS50: The house was silent . The reason being, we've trained these people a certain way, and no~~i that's why I'm writing the PPVs, because basically, the PPVs need to be written the same way as television, because that's what the fans expect .

BEN: That is true, but you have to recognize that 4VCW does a lot of short matches too, but when you go on their PPV and see a really good "wrestling match" where the workrate is high, with like . . . I can remember Raven and Saturn v. Malenko and Benoit on PPV, and it went like 12 or 13 minutes and the crowd was hot the entire time . You don't think that type of thing would work in the WWF?

. RU 5~v : i think that's a rarity i " watch everything that I can . I've never watched Mexican or Japan, because I don't give a shit . I live here, that's all I care Stone Cold about. But one thing I got to tell Jersey! you, I was watching ECW last ' ~.AJWF Attitude week, Van Dam and who--? Tee NWO Bucket Cap BEN : I won't even go into that . Sable Attitude Bear RU550 : No, but who's the other . Hogan Flag guy? ~ Goldberg T- shirt BEN : Jerry Lynn . 1 RUSSO : Ok Jerry Lynn . Now I got to tell- you something, seriously, I was sitting here really enjoying the hell out of the match, but it got to " the point even with me where it was like, OK end this . The thing is, you've got to understand, in this day and age, there are so many things for people to do that their attention span is so nrrp ://www .wresrieiine .COfT"1/CO . . ./miiiery-Juyyo .Cli lU/1//yy Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 18 of 296 f WrestIeManiacs - WrestIeLine is your Professio . . Page 8 of 10

~iiV~l . vYIIY UV you 11111IK -w h en UICIC :J O commercial people change the channel? You know what I'm saying?

BEN: I agree, but are you saying that something that I thought was just as incredible, I don't know if you saw the last ECW PPV, but Mike Awesome versus Masato Tanaka and they went out there for a good 13-15 minutes and trey had what people would call a **** or a ***" '/z match, is that going to be obsolete in the WNJF? In that match where they basically stayed around the ringside area, and there's a clean finish - even though I know they used table aid chairs - but there is no in the crowd brawling, is kind of thing going to become ob5ol2 :° in the WVlF you think?

RUS50 : I don't want to say obsolete, but I don't see it going back in that direction . The only reason I tell you that, I'm at every show, I'm there, you put Rock and N1ick in that ring with microchones, the people will sit there for a half an hour and be entertained . You put a wrestling in that ring for over ten minutes, they want to know, let's get to the finish, and let's go on to the next thing . And you gotta understand from a writing point of view, I am not dictating to these fans . I am basically in the arena every Monday and Tuesday night, I am in the arena, I am listening to the fans . All that I am trying to do from a television- tivriting standpoint is give the masses what they want . Now, I'm not saying give the smart wrestling fan what they want, I'm saying give the masses, and that's my job.

" BEN : I see that, and I don't want to beleaguer it, but some would argue that it's true, that WWF fans mainly sit on their hands for matches that go more than 10 minutes, but some would nrrr) :iiwww .wresrieiine .comico. . .immery-juyyn_nr I I)/ I /iyy Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 19 of 296

i WrestIeManiacs - WrestIeLine is your Professio . . Page 9 of 10

" argue that it's because the quality of the in-ring wrestling isn't as good . Don't you think that if you pit two good wrestlers in the ring, and I know we had talked abort the Van Dam - Lynn thing, but I don't consider Van Dam to be that great of a wrestler, I look more to the Masato Tanaka - Mike Awesome example. Don't you think if you put two good wrestlers in there, who had a match which could stir the fans emotions, that that would . . . look at what happened with Sting and Benoit? I know they still got killed by Raw when Raw opened, but they kept a much larger percentage than they had been by starting off their show with interviews . Do you think there's any validity to that?

RU550 : rJo . I think they kept a much bigger number iiio~~ ~~°,~ did, F°C~Jca t,h,aF was ra_?Ily " well-booked match where you couldn't call the outcome . Benoit isn't going to beat Sting in the middle of the ring, and Sting isn't going to beat Benoit, so what are they gonna do? That was the appeal to the match .

BEN : OK .

RUSSO : Don't get me wrong, I love to see a -good wrestling match, but my job is . . . I get paid to give the people what they want, and whether I agree or disagree with them is not my job . I'm not writing television to please Vince Russo . I'm writing television to please the masses, and like I say, when I go out in a crowd, and I see the response from a Mick - Rock promo, and response to a wrestling match, I know what they want to see . And again, it's " not Virce Russo writing TV for Vince Russo, I'm just trying to give the people what they want .

Part i " Part 2 " Part 3 -- .,. ...... ~ .~ ~ar~nr-r~~~~nl~ rnm/!'n /R'1111prVt11UU19 r1< 111/1 //%-i4 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 20 of 296

WrestIeManiacs - WrestIeLine is your Professio. . Page 10 of 10

" E-mail Ben Miller I Miller Time archive J WCW " WWF " ECW " Indies " Int'I .

This website is not sponsored or endorsed by the WWF, WCW or ECW. This is not an official site .

n U

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EXHIBIT / ATTACHMENT

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" Author : Randy Melcher at TBSCEHTRAL Date : 3/15/99 02 :51 PM Priority : Normal TO : Brenda Smith at TBSCNNCTRWCW CC : Diana Nyere at TBSCNNCfRWCW CC : JJ Dillon at THSCNNCl'RWCFI CC : Hrett Aellenga at TBSCENTAAL CC: Paul Boatman at TBSCENTIi11y Subject : WCW - Power Plant Trainees / Workers Compensation -'---'------Message Contents ------Brenda,

Hyere, According to Diana WCW is leaning towards having the WCW power Plant trainees sign agreements under which they will receive a small stipend for expenses and/or another form of compensation, etc . Only those trainees who have potential in WCW's estimation will be allowed to train and workout at the Power Plant . it was agreed that going-forward, all WCW Power Plant trainees should be covered under the WCW worker's compensation program .

Once the WCW Power Plant reopens for tryouts, we will continue to have the participants sign releases . Diana has a copy of the latest version .

Please let me know if you have any questions or if I may be of further assistance .

Seat regards,

Randy

GUMS Z4 S

WCW 018436 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 23 of 296

EXHIBIT / ATTACHMENT

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DECLARATION OF JOHN SNAKOVSRY

STATE OF GEORGIA COUNTY OF

John Snakovsky gives the following declaration under penalty of perjury and states as follows : i . -Y, 5-

I became a wrestler WCW in 1994 . My wrestling name and professional name is Johnny Boone .

2 . 'Y S.

In 1999, I became a referee . In my capacity as a wrestler, and then as a referee, I was in a position to personally observe many of the WCW officials, especially those who worked in the Booking Department .

3 . 'T 3,

On numerous occasions, I heard Terry Taylor use offensive and negative words in describing minorities . I neard him call Sonny Onoo a "Jap" on several occasions . I also heard him refer to Sonny Onoo as a "Gook ."

9 . _X, S

I also heard Terry Taylor use the word "nigger" on many occasions . In fact, he constantly used that word when referring to African-American wrestlers .

5 . 5 S

I heard Terry Taylor call Ernest Miller ("The Cat") a "nigger ."

6 . ~- S"

I also heard Terry Taylor call Harrison Norris ("Hard Body") a "nigger ." Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 25 of 296 f 7 . -Ss .

On one occasion, I heard Terry Taylor state that neither Bobby Walker nor Hard Body Norris would make it in the wrestling profession because they were "black ."

e . -E-5-

Based on my observations of Mr . Taylor, including his use of the words "nigger" and "gook" I believe that Taylor was discriminating against non-Caucasians . a .

For example, I recall that Terry Taylor often "pushed" a Caucasian wrestler by the name of Joey Mags . Upon information and belief, Mr . Mags had many personal problems . Joey Mags did not possess many skills and abilities as a wrestling performer . Nevertheless, I am personally aware that Terry Taylor "pushed" Joey Mags over Ernest Miller . Although Ernest Miller was a much better athlete, better wrestler, and better performer, Terry Taylor "pushed" Joey Mags over Ernest Miller .

10 . -N"5,

I also am aware that Terry Taylor pushed Joey Mags, but did not push Hard Body Nor=is or Bobby Walker .

11 . 'Y

I personally observed Terry Taylor treat Sonny Onoo horribly . Terry Taylor always referred to Sonny in a negative and/or racist manner, and never provided Sonny with an opportunity fully use his talents .

12 . ms`

Sonny played a very unique role at WCW . Sonny was neither a wrestler nor a referee, but worked as a manager/entertainer . Sonny was extremely professional, very diligent, and always demonstrated a thorough understanding and knowledge of the wrestling industry .

13 . S: S_

Based on my observations and experience, Sonny Onoo was a much better entertainer and/or manager than Sherry Martil . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 26 of 296 f

Similarly, he was much better than Tori Wilson . As to each of these individuals, Sonny demonstrated much better role-playing and more professionalism . He also demonstrated a greater degree of wrestling expertise in his apY_oach to wrestling ,. .e .^.ts .

14 .

Sonny Onoo was also a better manager/entertainer than Colonel Parker . I believe that Sony was better at involving the crowd, and getting a crowd reaction to various staged events than was Colonel Parker . He also was more knowledgeable about wrestling, and was a much harder worker than Colonel Parker .

15 .

In addition to Terry Taylor, I heard many other WCW officials use racist and/or negative words such as "nigger ." I cannot recall with certainty the identity of the other individuals, but I am confident that I heard these words from WCW officials in addition to Terry Taylor .

16 .

In the summer of 2000, I was working as a referee . That .a .~~rlr1 I11C]I1L, t he 'TI C'~r held In r Championship wrestling match . The match was scheduled between Booker T and Jeff Jarrett . Based on my recollection, Booker T was not "pencilled in" to win the fight . As those of us in the industry know, a particular wrestler is scripted to prevail in a fight . I believe that Jeff Jarrett was scripted to win the world championship over Booker T on that particular date .

17,

Before the actual wrestling match, I had heard Vince Russo and Terry Taylor discussing a lawsuit filed by Hard Body Norris and Bobby Walker . I believe I also heard them refer to a wrestler named Ice Train during this conversation . All of these individuals are African-American .

18 .

During the conversation, I heard Terry Taylor and Vince Russo state that these African-American wrestlers had sued WCW for racial discrimination . I recall Taylor saying, in reference to Hard Body Norris, "that nigger Hard Body is no good ." Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 27 of 296

. 19 . TS

During the same conversation, I heard Vince Russo and Terry Taylor state that they would have to do something about the racial allegations against WCW .

20 . -7. 5.

Each of them indicated that they would have to do something to deflect racial allegations brought against WCW . During the conversation, they made it clear that they were going to make an African-American the champion in order to make it appear that they were not discriminating against African-Americans . Terry Taylor indicated that by making Booker T, an African-American, the champion, it would "get them off of our backs ." In sum, they made it clear that they were concerned about racial allegations brought by Bobby Walker, Hard Body Norris, and other African-American wrestlers . In order to make themselves appear not to be racist, they scripted Booker T, an African-American, to become the WCW champion in response to the lawsuit alleging racial discrimination .

I declare under penalty of perjury that the foregoing is true and correct .

~cS~ 200? Ex cuted on (Date) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 28 of 296

EXHIBIT / ATTACHMENT

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FIDAVIT OF MOSES WILLIAMS

STATE OF GEORGIA COUNTY OF FULTON

Personally appeared before the undersigned officer, duly authorized to administer oaths, Moses Williams, who, upon having been first duly sworn, deposed on oath and states :

1 .

I worked for World Championship Wrestling ("WCW") in various capacities . I was initially hired as a stage carpenter in October, 1991, and worked as a stage coordinator when my employment was severed by WCW in March, 2001 .

2 .

In addition to the work that I did at wCW, I have extensive experience in stage production, and have worked on many large events . Among other clients, I have worked with entertainment groups such as the Rolling Stones and Michael Jackson . I was also involved in Farm Aid .

3 .

Throughout the approximate nine and one-half years of working with WCW, I was always a very loyal and dedicated employee . I was extremely courteous to all personnel, and treated everyone with respect . I was also very respectful of managers and officials at WCW .

4 .

Even though I was always very dedicated to WCW, I observed many actions that demonstrated a racial or ethnic bias against anybody who was not a Caucasian . I myself, am African-American . Although some of the WCW officials were more overt about their racial biases than others, I believe that there were many actions and decisions that were made based on a racial or ethnic bias . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 30 of 296 f / i

5 .

over the years, I .,.,~er:"eu certain, i'iCi'i officials make statements and take actions in order to protect the "good old boy" establishment . Unfortunately, the "good old boy" establishment was exclusively Caucasian . Also, in my experience, the favoritism and better treatment given to Caucasians over minorities was pervasive throughout WCW .

6 .

During nine and a half years at WCW, WCW never had an African-American work in Security in any capacity . I even recommended some qualified persons for Security, but they were not hired . The decision-maker, Mr . Doug Dillinger, expressly stated that there would not be a black "security" person at WCW . True to his word, there never was an African-American hired to work in Security . As I indicate further in this affidavit, Mr . Dillinger made other statements showing his racial bias .

7 .

Similarly, there was never an African-American hired to work in Lighting =t wrw, The rlar ;q ;on-maker was Frank Santoro . Mr . Santorooverlooked many qualified African-Americans . I personally recommended several qualified African-Americans directly to Mr . Santoro, but he did not hire an African-American person for Lighting .

8 .

Similarly, Mr . Santoro was also responsible for hiring truck drivers for the WCW tractor-trailers . In the years I was with WCW, I only recall one African-American truck driver (female) . She was involved in a minor incident, whereby she collided with a painted post (or similar fixture) and did a little damage to the truck . The truck had been leased, and I myself inspected the truck . I did not see any significant damage to the truck . The woman was crying as she told me that Frank Santoro fired her for the accident . I did not feel this was fair because I was aware of at least two Caucasian drivers who were involved in much more serious accidents, but were not fired . One Caucasian driver was involved an accident in Nashville, Tennessee, whereby he took out a whole street light and the pole it was on . There was damage to side of truck, and the pole was destroyed . The police even came and took a report .

t. W Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 31 of 296

As to the other Caucasian driver, in Indiana, the driver lost control of the truck and it effectively destroyed the truck and the trailer . But L:11--j Caucasian d'river was not f4 -4

9 .

WCW also never hired an African-American to work in Audio . A1 Smith was the decision-maker for Audio . I submitted many highly qualified African-Americans for his consideration, but he never hired an African-American for Audio .

10 .

The Production Manager was William Byrd . As Production Manager, Mr . Byrd was ultimately responsible for Staging, Lighting, Audio, and Trucking . He was the supervisor of Mr . Smith and Mr . Santoro . I am aware that Mr . Byrd often asked if a prospective employee was Jewish . If a prospective employee was Jewish, Mr . Byrd said to hire the individual . I felt that this bias was unfair because many minorities were not Jewish . I also recall a statement Mr . Byrd made about the child of another WCW employee, Steve Small, who married an African- American woman . Mr . Byrd stated, "Steve's kids will have problems in life because they are half black ."

11 .

Vince Russo often made statements demonstrating that he preferred Caucasian persons, especially Caucasian males, over other persons for WCW management and control . I heard Vince Russo often refer to people as "blacks," "Daps," "`spics" or "wetbacks ."

12 .

I heard Vince Russo make statements suggesting that "whites" were in control at WCW . For example, I heard him say, "whites rule wrestling ." I also heard him say that it was a white man's sport and that "is why we don't have many black wrestlers ." I also heard him say I am running things the way that I want and we are going to have a "white champion" because that's the way I want it . Vince Russo made it clear that he did not want oriental persons, African-Americans, or Hispanics succeeding at WCW, much less gaining any position ofj~inanagement or control . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 32 of 296

13 .

Similarly, I heard Berry Tayiur cuiake stutcme^ts demonstrating his racial and ethnic bias against persons who were not Caucasian . Although he was somewhat careful around me, I have heard from other persons that he routinely used words such as "nigger ." I did, however, hear Terry Taylor express his desire to promote Caucasian wrestlers . For example, I witnessed Mr . Taylor overtly "push" Caucasian wrestlers, but not "push" African-Americans .

14 .

I also heard Terry Taylor make statements about his opinions of African-American fans . I heard him say, "blacks don't buy wrestling tickets ."

15 .

In my experience, WCW officials such as Taylor and Russo treated Caucasians better than African-Americans, Hispanics, and Asian-Americans . Based on my observation, non-Caucasians received a "B" treatment . I use the term "B" treatment to indicate l`.11ai.minv^Tii.1°S W ono *,or_ treated as favorably as Caucasians .

16 .

I have personally observed WCW, through its employees and managers, treat minority wrestlers differently than Caucasian wrestlers . For example, on numerous occasions, I observed wCW officials "push" a Caucasian wrestler over a non-Caucasian wrestler . In wrestling terms, a wrestler is "pushed" when that wrestler is provided television exposure and/or is scripted to prevail in a particular match . As it is well known in the industry, the WCW officials would write scripts as to which wrestler would prevail . On numerous occasions, I believe that the Caucasian wrestler was unnecessarily scripted to prevail over the African-American wrestler .

17 .

For example, I recall a wrestling match between a wrestler named Stevie Ray (African-American), who was one of two members of the very successful Harlem Heat duo . On that particular match, the Caucasian wrestler, David Flair, was scripted to prevail over Stevie Ray. Although Stevie ay had been extremely Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 33 of 296 f

successful in his participation with the Harlem Heat duo, and although SY.evie Ray was considered by myself and others a much better athlete and performer than David Flair, David Flair was scripted to prevail over Stevie Ray, nonetheless . It is my belief that this decision is one of the many times that wrestling victories were scripted based on a racial bias .

18 .

Similarly, David Flair was routinely scripted to prevail over Ice Train (African-American) even though Ice Train was a very strong and solidly built wrestler who was much bigger than David Flair . And on the one occasion when David was not scripted to prevail, Ice Train effectively destroyed (and even injured) David Flair .

19 .

I also observed the treatment of an African-American wrestler named "Hard Body" Norris . I was told Hard Body was referred to as a "dumb nigger ." I note that Hard Body was never given any meaningful chance, and was never pushed . Hard Body was really badly treated . A fan indicated that it seemed puzzling that Hard Body was getting beaten so easily a- T.7-T-7 though he was winning the "Tough Man" Competition . Another "Tough Man" competitor, Tank Abbott (Caucasian) was pushed very hard, and had great exposure .

20 .

I recall another interesting event when a wrestler by the name of Booker T was scheduled to wrestle Scott Steiner . I believe this was in the summer of 2000, and was a very big WCW event . Because it was a big event, I was very involved in the stage production for that particular fight .

21 .

I specifically recall everybody talking about the match, and everyone stated that Scott Steiner (Caucasian) had been scripted to win that match over Booker T (African-American) . Indeed, even during some of the stage preparations, it was a known fact that Scott Steiner would be the world champion for WCW by the end of the night . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 34 of 296 f a

22 .

Even though Scott Steiner had been designated the world champion, I was informed before the match that there had been a change . I was informed that Booker T would become the champion instead of Scott Steiner . During my production work, I had my headsets on and I heard various conversations . During these conversations, I heard Vince Russo and Terry Taylor calling the shots . These two individuals made it known to the WCW workers that Booker T would be the champion that night, and not Scott Steiner .

23 .

I was extremely surprised and taken back . In my experience, I had never witnessed a change of the designated winner so close before the match . Myself and many people all wondered what the reason was for the abrupt change in the scripted winner . We thought it was quite unusual, if not bizarre, to change the designated world champion on the day of the match . Even after the show, people were shocked at the abrupt change .

24 .

I heard several WCW employees state that the reason for the abrupt change was a response to the racial allegations raised by wrestlers against WCW . These employees, recognizing that Booker T . was African-American, concluded that WCW officials such as Russo and Taylor made this move to conceal their racially discriminatory practices and to provide a defense to the lawsuits involving racial discrimination .

25 .

Although I witnessed many discriminatory acts and statements, I did not personally raise any formal complaints . I am aware that another African-American, Pez Whatley, did vocalize his opposition to racially discriminatory practices that he perceived . I believe that Pez Whatley suffered retaliation for raising his concerns of racial issues and discrimination . For example, Pez Whatley was no longer pushed, was no longer involved in training as he had done before, and was essentially removed from wrestling and demoted to menial labor such as setting up the ring . -

&' Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 35 of 296

26 .

In addition Co discriUuuativr, ayairIst :Eric....-American wrestlers, I also believe that WCW has favored Caucasian wrestlers over Asian-American and Hispanic wrestlers . I recall a particular group of Asian-American wrestlers known as the Young Dragons . Although I felt that they had much to contribute to the wrestling entertainment, these individuals were never "pushed" or given any meaningful exposure . I recall one match whereby the fans were overwhelmingly in favor of the Young Dragons over Three Count (all of whom were Caucasian) . Nevertheless, the Young Dragons were not pushed after this event, but WCW did continue to push Three Count .

27 .

As to another individual Sonny Onoo, I believe that he was treated differently because he was not part of the "good old boys" network as I described earlier . Sonny, an Asian-American, was never accepted and brought into the inner circle even though he was extremely knowledgeable about the wrestling industry, and was a very capable and hard working person .

JA .

As to Sonny Onoo, I am now aware that Sonny Onoo was not a full time employee of WCW . This surprises me because Sonny had an office, was listed on the extension list of WCW personnel, and contributed greatly to wCW . In addition to serving in numerous capacities such as agent, entertainer, coordinator of talent, Sonny also translated for Hispanic and Asian wrestlers .

29 .

Jimmy Hart's work was very similar to the work done by Sonny Onoo . Similar to Sonny, he was responsible for recruiting and developing talent . Although Jimmy didn't work as a translator, they essentially performed similar work . Although I am not taking anything away from Jimmy Hart, I believe that Sonny was just as qualified (or even more so given his language skills) as Jimmy Hart .

30 .

As to Asian-Americans, I also recall seeing a "Chinese menu," on the bulletin board at WCW . This "Chinese menu" portrayed Chinese in a very negative manner . This is o e Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 36 of 296 f example of the atmosphere at WCW, which tolerated and perpetuated racial stereotypes and racial prejudices .

31 .

As for me, I also believe that I was personally treated differently because of my race when WCW hired Caucasians, and paid them more compensation than I was receiving .

32 .

As I indicated earlier, I have much experience in stage production and am capable of performing every aspect of preparing a stage event . At one point, I was working as the prop master, carpenter, stage manager, and performing any and all other work for WCW . Although I felt that I was being overworked, and spread too thin, I did not complain and did what was asked of me .

33 .

I did become quite upset, however, when WCW hired Caucasians to perform my tasks, but paid them even more than I was T~d 'I1-< n g . For example- , wow fired Trevor Georqe, Art Shipley and Scott Stevens (all of whom are Caucasian) to work on the props . I believe that WCW paid each of these Caucasian individuals more than what I was making even though they were only doing one part of the job that I had done, and even though they did not have nearly the extensive experience in stage management and production . Similarly, WCW hired Ellis Edwards to do the stunts and the props, and also paid him more than I was making . Again, I was much more qualified for the type of work than Mr . Edwards, but I believe WCW paid him more than I was paid .

34 .

I believe that the manner in which WCW handled this situation, and paid the Caucasian workers more money than I was making was racially biased .

35 .

As I indicated earlier, I did not confront the WCW officials with my complaints about discrimination . I heard from several individuals that I was known as the "good nigger ." I was basically told that because I did not make any waves, call Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 37 of 296 I

the Caucasian officials "Sir" and "Mr .," and because I did everything that I was told, that I was considered "a good nigger .°

36 .

In addition to the racial discrimination against WCW wrestlers and employees, I also believe that WCW officials discriminated against wrestling fans based on race .

37 .

I previously addressed Doug Dillinger . I also add that, on numerous occasions, I observed Doug Dilinger, the chief of security, provide promotional gifts and souvenirs to Caucasian children, but did not treat African-American children the same .

38 .

I was offended by Mr . Dillinger's flagrant favoritism towards Caucasian kids . I made my best effort to treat all of the children the same, regardless of their race (although I did go out of my way to take care of any children with apparent handicaps) . H,~+' to Mr . uiiiiRycT, 11 recall'., .`~.L:r1^.7 Simpson trial stating that "yes I used the "N word," and I will use it again ." He then stated that it would not effect the way he would act in the work place, but I believe that his actions speak louder than his words .

39 .

I recall Terry Taylor stating that they did not need to "worry about spies or brothers ; they just need to get to the back of the line ." I believe that he was referring to African- Americans, and any person who would raise complaints about the treatment of African-Americans . He was indicating that they would be put at the back of other persons seeking advancement at WCW .

vl I r " Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 38 of 296

t t

40 .

As .O Terry Taylor, i was ~0~ .'~.. }`j wn~rl:a_r pargnn that when WCW signed Hulk Hogan,that Terry Taylor stated that WCW was bringing in Hogan, and he didn't want any blacks on the show to take away from Hogan coming back into the limelight . From my understanding, Taylor didn't want any black wrestlers to take away from his intended effect in bringing in Hogan .

I have read the above . It is true and correct .

FURTHER THE AFFIAN'I' SAYETH NOT .

~~.i`~-Cwr~ Moses Williams

Sworn to and Subscritpe~i Before me this I Y"~day of ru, , zooa .

n ~~ \ t n

NOTARY PUBLIC Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 39 of 296

EXHIBIT / ATTACHMENT

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To : ALL WCW TALENT CC: Enc Bischoff Bill Busch From : J .I.IJlI_LVfV L~IdI'14 IvlyViJ Alan Sharp Date : APRIL. 30, 1)99

Subject : TALENT INCLUDING PERSONAL APPEARANCES

We have had several recent situations where talent were needed on short notice for WCW business ("house show" substitution, personal appearance, etc.) only to be informed by the individual talent that they had made a previous commitment no( approved by WCW (movie project, charity appearance, autograph session, etc.) that caused a conflict. In order to avoid a reoccurrence of these situations tom this point forward, please be advised that alt requests for days "OFF" must be requested in advance and approved by J .J . Dillon. If you are planning a vacation, wanting to attend the wedding of a friend or planning to attend a school reunion, etc., you must request the time off in advance. THIS INCLUDES ANY AND ALL PERSONAL APPEARANCES (INCLUDING AUTOGRAPH SESSIONS), WHETHER FOR CILkRITY OR INVOLVING AN APPEARANCE FEE .

a;cnt Re!a!:ons has hPP,n, given"~° _nnmValrr nn a trial basis to authorize personal appearances for talent that involve payment to talent of a fee payable tom a source outside our company . These personal appearances will only be considered "Authorized Appearances" if they are scheduled through WCW. The talent involved and WCW will share any fee involved, with the majority of any appearance fee gain ; to the talent that makes the appearance. All of these non WCW related personal appearances will be voluntary (therefore not regarded as a workday if there are limitations in the WCW talent contract) and subject to the approval of the talent. Appearance fees are usually determined by the fair market value, and if approached, WCW will attempt to get a fair appearance fee, which is subject to the approval of the talent. If you are approached concerning an appearance, please have the party contact J .J . Dillon to comply with our appearance approval process . This usually involves a contract for the appearance, which assures the validity of the request All appearance fees are received in advance by WCW, which assures the talent will be paid in accordance with the agreement. ALL APPEARANCES NOT CLEARED BY WCW WILL BE REGARDED AS "UNAUTHORIZED" AND YOUR PARTICIPATION 1N AN "UNAUTHORIZED APPEARANCE" COULD BE INTERPRETED AS A BREACH OF YOUR CONTRACT.

71tis represents a great oppominiry for an added revenue stream for WCW talent. 'Ibis should continue beyond a trial basis, if we all work within the system. If you have any questions or comments, please call J.1 . Dillon at (404) 603-3832. Tbank you.

r PLAINTIFF'S EXHIBIT 4 5 wcw 010262 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 41 of 296

EXHIBIT / ATTACHMENT

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 42 of 296

t~.~-~rJG FULL LEGAL NAME: '~~'aorJ )l f-UorJ ~Itsrr

FUND NAME: o.a.g. 3/~ °l(, 7 CtntRENr /703 ,eJGr_ . uNwJa~y G4 30338

PHONE: ~O~Z7'5.30 ~ GI BOs sse: Z3 - 93/c, EMERGENCY CONTACT : FJU Sj3(, '7 70-757' 9

T0.Y OUT DATE: 'Ve/L (w-7 STARTING DATE: ~G . /S / 7 ~a CptiQ(gM: DARRON HAS A GREAT BOD Y, WITH SOME OF THE BIGGEST ARMS I HAVE SEEN . DARRON HAS NOT BEEN HERE LONG BUT HE IS

HERE EVERY DAY AND IS COMIMG ALONG JUST FINE, WHEN HE IS FULLY TRAINED HE WILL HE A VERY GOOD PRO `_.

CONFIDENTIAL

NA"01 0027, 36 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 43 of 296 l 1

:Smn~n r ini.c.i~i ~vrv ..a)A"vT I PL~~,TIr iNwn-I ~DV X000 .

"FMAVYWEIGHT DIVISION"

DARREN EASTERLING: $250.00

r DARREN HASNT BEEN WITH US 7'O LANG BUT HIS WORK IS STARTING TO CONE AROUND, HE IA NOT A NATURAL, BUT IS VERY COACHAHLE, HE WORKS VERY HARD AT TRYING TO LEARN HIS CRAFT AND I THINK THAT SOMEDAY SOON IT WILL ALL FALL INTO PLACE FOR HIM AND NE WILL GET A GRASP ON IT. IF HE DOESN'T IT WOULD BE A SHAME BECAUSE HE REALLY WANTS IT AND FE LOOKS GREAT.

'LOOK. FOR TV."

HE LOOKS GREAT, WITH HUGE ARMS AND CHEST, 6R 4m. 2801bs., BIG BALD HAD, A NA"['GWIU§T q 9I91ffAN ANP ?iA$TY S.O.H.. ..

C NVrNN0025;

CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 44 of 296

EXHIBIT / ATTACHMENT

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Page I

1 IN THE UNITED STATES DISTRICT COURT . FOR THE NORTHERN DISTRICT OF GEORGIA 2 ATLANTA DIVISION

3 WILLIAM BOULWARE, JR ., ) 4 et a1 .,

5 Plaintiffs, )

6 VS . ) CIVIL ACTION FILE N0 . 1 :01-CV-0915-CC 7 WORLD CHAMPIONSHIP WRESTLING, ) INC ., 8 Defendant . ) 9 )

12 DEPOSITION OE WILLIAM BOULWARE, JR . 1-Z L__J NOVEMBER 16, 2 0 01 10 :09 A .M . 14

21 i' zz

25 CERTIFIED COURT REPORTERS Pinnacle, Suite 500 . 3455 Peachtree Road, N .E . " Atlanta, Georgia 30326 " www.premierrptg .com Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 46 of 296

i It Page 70 Page 72 1 18 years in [he carver . You got to understand most I Q Yell, back up for a second. You had that 2 of these guys we used to have a circle, and you xe 2 conversation with - 3 these guys all she tune. And like you might - you 3 A Terry Taylor-- 4 - well, you at arena or not you see iisni. `lou=all 4 -T.,, Tn~lnr_ Whenwscfhat? 5 go to the same places. I go to places looking for 5 A That was, like, it had to have been in'98 s 6 talent 1 see Nick Patrick . 1'd see Jl Dillon . 1'd 6 or'99. 7 see Am Anderson . 1'd maybe see them once or twice a 7 Q Wherc did that happen? 8 week . S A At one of the arena 9 Q My question, though, about the referees . 9 Q Was anybody else around? 10 A Yes . 10 A No. Not at the time. 1 I Q You'd remembered Nick Patrick's name, but 11 Q And you said you've had a similar 12 you said you couldn't remember the namo of other 12 conversation with other people? 13 referees? 13 A Yes, l have. 14 A The name Nick Patrick -give me a minute. 14 Q Who have you had that conversation with? 15 Q Please? is A Well, f had a conversation with Am 16 A I'll give it to you. Nick Patrick? It's 16 Anderson . 17 just too far. 1 mean, 1 know- they right in front 17 Q When was this? 18 of me, butlcan't- 18 A Shoot, probably -- about a month or two 19 Q Well, if you do remember, if you will just 19 months before you-all closed, before Turner closed. 1 20 let me know, or let your lawyer know if it's not 20 guess most of the guys was -- I thought they was 21 during the course of the day. 21 coming down off their bigotry they had been with us, 22 A Okay . 22 but they were mad at Turner because they figured they 23 Q How do you know that- you said a minute 23 had no job no more. I don't know what it was. 24 ago that you thought they wen employee. How do you 24 1 run into JJ. I run into Paul Omdorff: 25 know they were employees? 25 Paul called me about using the kid in my wrestling

Page 71 Page 77 1 A Well, Terry Taylor told me. I organbauon, and 1 replied to Paul, 1 said, why now 2 Q What did Terry tell you? 2 you-all want to work with me when 1 been trying to be 3 A Well, it was a guy came in by the name of 3 a referee, 1 been trying to put my company out there? 4 Chip Crockett. His family used to own the wrestling, 4 And Paul basically fold me that they had 5 and we all - Pez, myself, everybody was sitting there 5 got some word from Turner Sports that black people 6 and he became an employee . 6 don't buy tickets ; they don't use no niggers . 7 Q Was he a referee? 7 Q Paul said that to you? 8 A No. He was an employee . So 1 went to Terry 8 A Yes. Paul said that to me. 1 was Paul 9 and, I'm saying, how did this guy, white, come on and 9 partner one time, so 1 been knowing him for over the 10 aidt had no experience in the business and become an 10 period of time, and we word nigger, buckwheat, I1 employee? II crackhesd, you got to understand, were something they 12 He said, to me, this is the way we 12 used. l mean, it wun't- 13 operate. Turner told us we don't raced to use you-all 13 Q When you gay they, who arc they? 14 niggers . Just like that Something about survey or 14 A Well, lody Hamilton, Jl Dillon, Paul I S whatever. I S Omdorfr; Mike Wenners. All employees. Doug 16 And 1 kept saying, why? 16 Dellrnga. 17 He said, we got it from the big office. 17 Q Let me get back to your point We'll talk I S They told us we don't have to use you-all . I S about that a little more, but let me get back to your 19 And 1 asked Terry. 1 said, well, why? 19 point You said that you believed retirees were 20 He said, we make employee to people, white 20 employees, and what I want to know is, what evidence 21 people, not black people. 21 do you have - 22 Q When did 6e say this to you? 22 A Nick told me. 23 A Terry told me this in - 1 had this 23 Q -that they were employees? 24 conversation with a few of them in the last few months 24 A Me and Nick was going down the road one day, 25 before they closed. 25 end Nick, l would say, about, 1 need some insurance

19 (Pages 70 to 73) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 47 of 296

Page 122 Page 124 1 them over. They had young guys come like I mentioned I the clique. 2 the guy, a distant friend . This kid come in, while 2 Q Did Terry Taylor say the reason you were 3 guy. 1 mean, basically couldn't even wrestle. They 3 paid differently than Mr. Nelson was the color of your S 4 made - from wrestle, they know he was a booker . He 4 skin? 5 had no prior qualifications of that. 1 mean, 1'd been 5 A Yes . He said that . 6 wrestling ten years before he even got in the 6 Q Did he say those words? 7 business . 7 A He said that, oh, yes. 8 Q So, Mr. Boulware, is it your complaint that 8 Q What words did he use? 9 you didn't get these job opportunities? It's not 9 A He use several different-1 balked to him 10 really that you didn't get paid the same as them? 10 several different limes. 11 It's - 11 Q What do you remember him saying? 12 A I didn't get the paid the same also. 12 A 1 remember him basically telling me - do 13 Q Because you weren't doing the job; right? 13 you want me to use a good example? 14 You said you couldn't get the job? 14 Q What Pd like you to do u tell me what he IS A Well, for example, when 1 was ring - the I S said . Not basically what he said, but - 16 ring guy, where they cell ring boy, or ring guy, they 16 A 1 can't remember the exact words he said. 17 have a guy that west over here making $50,000. 17 Q Tell me what you remember him saying. IS Q Who? IS A 1 remember him telling me about that 1 knew 19 A Gordon Nelson 19 how - what was going on . Why would 1 keep bothering 20 Q Was Pez Whrtley making $50,000? 20 him, because things wasn't going to change . And 1 21 A Not at that time . Not at [hat time . 21 liked him a couple times, why? And that when ! - 22 Q Did he make $50,000 on the ring crew? Do 22 finally everybody started telling me - everybody, 23 you know! 23 meaning JJ, Dusty - l even talked to Dusty about it 24 A 1 don't know exactly what he made, but he 24 also. He was in management. "That the Turner people 25 got a raise after 1 complained so much to Time Warner 25 basically [old Them, when no black people come to the

Page 127 Page 125 I and the Turner people, then they gave him -- show, then they didn't have to use no black, period. 2 Q How do you know how much Mr. Nelson was 2 I don't know if it was true . I know they told me- 3 making? 3 Q This is Terry Taylor' 4 A He bald me several times. We rode the truck q A Terry . 11 told me the same thing. Am 5 together. He laughed about it. He laughed about it- 5 Anderson . The list go on. Each one of them sit down 6 He made a joke about it. It was out in your face. It 6 basically when we was away from all the record and 7 wasn't like they here behind your back and you hear 7 stuff going on and look me in the eye and told me that 8 Them whispering. They would say it to your face . 8 was the reason I wasn't getting no promotion and why I 9 they have no problem with saying it. 9 wasn't going to be nothing but the worst job that they 10 Q Other than Mr. Nelson telling you what he 10 could give me . And they basically told me that l l made, do you have any other evidence as to whit he- 11 Q What other evidence do you have that 12 A Him, Klondike - Bill Klondike, Chip 12 supports your claim that you were paid differently 13 Clocken. 1 mean, the list go on. 13 because of your race? 14 Q 1 iced you to listen to my question, Mr. 14 A Well, okay. Chip Crockett back again. We !S Bouhvarc. My question was, other than Mr. Nelson 15 was in Philadelphia, and 1 had just received my 16 telling you how much Mr. Nelson made, do you have joy 16 paycheck, and 1 had my check, and Chip felling me, he 17 other evideece how much Mr. Nelson was paid' 17 said, well, 1 got direct deposit Well, how you get IS A Yes. IS direct deposit? You're no[ no employee. 19 Q What's your evidence? 19 He said, oh, you didn't know? I'm an 20 A 1 Rave - Terry told me. We talk about it 20 employee, and f can get paid more than you. And even 21 all the time. 21 I showed him my check. He said no, l got a guaranteed 22 Q What did Terry tell you? 22 salary. 1 don't get paid by the low end- 23 A Terry basically told me -1 asked why my 23 I'm, like, how can you do that and you 24 pay different from theirs, and it arrays basically 24 came here probably 16 years after 1 ban in the 25 come bade, the color of your skin, and you're not in 25 business?

32 (Pages 122 to 125) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 48 of 296

EXHIBIT / ATTACHMENT

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 49 of 296 f roge 1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE NORTHERN DISTRICT OE GEORGLPFj r! ? ~. .,.n 3 ATLANTA DIVISION ~~

5 TONY BYRON CARR,

Cl( 6 Plaintiff, ) Civil Action File No . VS . ) 1-00-CV-1721 (CC) 7 WORLD CHAMPIONSHIP WRESTLING, ) 8 INC ., and TURNER SPORTS, INC .,) i` f ' f ,~ ' i 0 (3 ~ ~ 9 Defendants . ) ,

10 DEPOSITION OF TONY BYRON CARR JANUARY 28, 2002 11 10 :00 a .m .

20 l 21

29 z

25 CERTIFIED COURT REPORTERS ~ C ; . C-" 1r'0 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 50 of 296 n ce t age J J f

1 a truck driver . First time he said, I don't know who's

2 blowing smoke up your ass, kid, but they ain't hiring no

3 niggers .

9 Q . This is what Jody Hamilton said?

5 A . This is what Jody Hamilton said .

6 Q . When did he say that?

7 A . He said it right before we left Carol Drive . Then

8 we got up here, when he hired me back as a truck driver, you

9 know, I told him I still want to wrestle . I still brought

14 my wrestling gear . I still talked to the bookers . Hey, you

11 know, if you all need somebody, I want to wrestle . I didn't

12 come here to be a truck driver . I want to wrestle . So I

13 was trying to network any way I could to get back in, you

19 know, so --

15 q . Okay . And how did that conversation go when you

16 talked to him about that?

17 A . Well, that's when he said, he said -- this time he

18 cleaned up . He said, we're not hiring any blacks, you know .

19 Q . Did he refer to anyone in particular .

20 A . No, he just said --

21 Q . Did he give you a name as to who's making this

22 decision?

23 A . He just said the higher-ups .

2q Q . Okay . But you don't know who actually made the LJ 25 decision not to give you a wrestling contract?

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 51 of 296

f l it N CAgG 7L 1 A . Well, I had been hearing the whole time that Jody r 2 Hamilton was a racist . His brother was in the Ku Klux Klan, 3 all this stuff here . Jody would say certain things but I

4 didn't hear that stuff . All I know, I wanted to be a

5 wrestler, you know . I heard the stuff . I didn't hear it .

6 I heard the jokes . I heard the comments .

7 Q . What kind of jokes or comments did you hear

8 personally?

9 A . Okay . Well, Sarge, if we call people -- he

10 referred to this Asian guy as -- who was in the ring,

11 playing the ring, wrestling around, he's like, there's soul

12 food and oriental food in the ring or something like that,

13 you know, stuff like that .

19 Q . Okay . What else do you remember hearing that you

15 thought was a racial comment?

16 A . Taylor Terry would come by and say stuff like

17 there was a time when the air conditioner broke and he said,

18 well, you'd better turn the air conditioner on because you

19 know, these niggers, they can't take this cold weather .

20 Q . Did you hear that?

21 A . Yes .

22 4~ When was this?

23 A . This was -- can't remember the dates on it .

29 Q . How long had you been at the Power Plant when that

25 occurred?

PREMMR REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 52 of 296

Page 95 t 1 A . Paul said they're not hiring any blacks . This was

2 down at the new school, because what happened, went through

3 tryouts and Jody told me that -- made the comment or 5 I 4 whatever, but I hadn't talked to Paul Orndorff yet .

5 Q. Okay . So when was this conversation with Paul?

6 A. This was sometime late '99 .

7 Q . Okay . And what did he say to you? f i 8 A . He said they ain't hiring no niggers .

9 Q. And did he use the word "nigger"?

10 A . Yes, he did . a 11 Q . Okay . And do you know who he was referring to?

12 A. Well, I was the only one in the room and I was

13 trying to get a job . N

14 Q . No, no . When he said "they", do you know who he

15 meant by "they"?

16 A . I assume he meant WCW .

17 Q . But you don't know in particular who he --

18 A . No .

19 Q. Did Paul Orndorff ever say anything else that you

20 thought was racially discriminatory?

21 A. No, I didn't see Paul a whole lot after that .

22 Q . Tell me someone else that you believe down at the

23 Power Plant, said something that you believe was racially

29 discriminatory .

25 A . Okay . At the Power Plant . Like I said, Jody

PREhIIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 53 of 296

rage 97 1 Q . Okay .

2 A . You know, and then I didn't hear from him for a

3 while, and then about a month later he called me and asked

9 me if I wanted to get back on the ring truck, and I said

S yes .

6 Q . So he offered you a job on the ring crew?

7 A . Yeah, you know .

8 Q . Any other conversations with Jody Hamilton you

9 think were discriminatory?

10 A . Okay . All right . What happened, on the days

11 where I was off, Jody would have me come down there and move

12 a lot of stuff, you know, rings, you know, just shift stuff

I13 around in the new building here on Log Cabin .

19 I'd unload trucks by myself, move rails, and then I 15 I come back and sit down, I take a lunch break or whatever,

I16 and he had these stories and they start talking about the

17 problems with the black community .

18 He made this thing about Martin Luther King . He

19 was like, well, Martin Luther King started all this problem

20 and that's why black people are having so much trouble now .

21 He started segregation and a lot of black people got, you

22 know, sucked up in it because they weren't smart enough to

23 keep up with the white people, so it's bringing down the

29 society .

25 That's the kind of comments he was making, you

I ...

PRENHER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 54 of 296

XHIBIT / TTACHMENT

T (To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 55 of 296

DECLARATION OF PAMELA COLLINS

STATE OF GEORGIA COUNTY OF

Pamela Collins gives the following declaration under penalty of perjury and states as follows :

1 .

I worked for World Championship Wrestling Organization ("WCW") in the call center . My official position was the call center coordinator .

2 .

I recall WCW submitting a written request for each employee to write a job description . This description was later to be used for WCW's Employee Job Profiles .

3 .

In filling out the questionnaire, i correctly indicated that I "supervised" four to six customer service representatives . Although I was actually supervising four to six customer service representatives, I was never made a supervisor at WCW .

4 .

Until the time that WCW ceased operating, I continued to work as the call center coordinator . I was never paid as a supervisor, and was only paid for being the "call center coordinator ."

5 .

Throughout my employment with wCW, I often heard various rumors about discrimination . I could not help but notice that Caucasians dominated WCW, and we had few minorities . I became aware that there were specific complaints of discrimination filed by some of the wrestlers at WCW . I am certain that I was aware of these claims of discrimination before July 9, 2000 . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 56 of 296

6 .

On July 9, 2000, Booker T was made the world champion . Because I routinely watched various -videotapes of WCWrS events, T. watched the videotape of Booker T . I am confident that I was aware of the claims regarding discrimination prior to the time in which Booker T became champion .

7 .

As I watched the numerous videotapes of the WCW wrestlers, I often wondered why there was not more diversity among the wrestlers . The successful wrestlers were predominately Caucasian . With the exception of Booker T and a few other wrestlers, WCW was dominated by successful Caucasian wrestlers .

I declare under penalty of perjury that the foregoing is true and correct .

Pamela Collins

Executed on (Date) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 57 of 296

EXfIIBI ATTACHMENT K

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 58 of 296

DECLARATION OF GEORGE GRACE

STATE OF GEORGIA COUNTY OF

George Grace gives the following declaration under penalty of perjury and states as follows :

1 .

I am over eighteen years of age and competent to give this testimony, which is based upon my personal knowledge .

2 .

I am the President of Grace Market Research, Inc . ("Grace Market") and served in this position in March, 2000 .

3 .

In March, 2000, Grace market conducted an online survey for World Championship Wrestling, Inc .

4 .

In this survey, respondents were asked to rate a number of wrestling performers on a number of factors, including the familiarity and likeability . A true and correct copy of this survey is attached hereto as Exhibit "A ."

5 .

Respondents were also asked to provide some information about themselves, including their ethnicity . Specifically, Question No . 152 asked each respondent to provide his or her ethnicity . The survey provided the following options as possible responses to this question : (1) African/American/Black ; (2) Asian ; (3) Caucasian/White ; (4) Hispanic/Latino : and (5) Other .

6 .

According to the information provided by the respondents, the ethic make-up of the respondent group was as follows (percentages rounded to the nearest whole number) : Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 59 of 296

Base/ Total Number of Respondents 1379 Percentage of Total 100$

Percentage of Total

Asian : Total Number 32 Percentage of Total 2%

Caucasian/White : Total Number 1173 Percentage of Total 858

Hispanic/Latino : Total Number 66 Percentage of Total 5%

Other : Total Number 57 Percentage of Total 4%

7 .

This information was provided to WCW at some point during the spring or summer of 2000 .

8 .

Grace Market maintains this information on a database in electronic format . The information is no longer maintained by Grace Market in hard-copy form .

I declare under penalty of perjury that the foregoing is true and correct .

George GraC

1 `g-'), on -3, Executed on (Date) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 60 of 296

EXHIBIT / ATTACHMENT

10000

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 61 of 296 ORIGINAL f r~LF61s~ ~r

in; [in;i TVV jTTTP1 1~7f~m- T~m ~.. i THE nLLJ V1J1AS1.1 CO'i U. RT U ~'r1~-~ NORTHERN DISTRICT OF GEORGIA iu(u ATLANTA DIVISION :~ TONY BYRON CARR, )

Plaintiff, ) v . ) CIVIL ACTION FILE NO . 1 :00-CV-1721-CC WORLD CHAMPIONSHIP WRESTLING, INC .,) and TURNER SPORTS, INC ., )

Defendants . )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I . INTRODUCTION

Defendants Universal Wrestling Corporation (f/k/a World

Championship Wrestling, Inc .) ("WCW") and Turner Sports, Inc .

("TSI") submit this memorandum in support of their Motion for

Summary Judgment on all claims brought by Plaintiff Tony Carr .

Mr . Carr filed this action on July 10, 2000, alleging race

discrimination under Title VII of the Civil Rights Act of 1964 and

92 U .S .C . § 1981 . Mr . Carr alleges that WCW (i) discriminated

against him due to his race (black) with regard to wrestling

opportunities and compensation, (ii) retaliated against him for

filing this lawsuit, and (iii) subjected him to a racially hostile

work environment . In addition, Mr . Carr claims that this same

alleged conduct constituted intentional infliction of emotional

distress ("IIED") under state law . Finally, Mr . Carr asserts that

ff~ Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 62 of 296 r

v:~ :': v.. ._. .~ ~=m --id ~ "" ~ " uw wages u~iu vvCi~iu~c under =IIC [dli

Labor Standards Act, 29 U .S .C . § 201 et seq . (the "FLSA") .

As shown below, these claims are without merit . Mr . Carr was never treated differently due to his race, and was given opportunities and paid like other similarly situated whites at

WCW . Likewise, Mr . Carr was not subjected to any retaliation for filing this lawsuit, nor was he subjected to a racially hostile work environment . All actions taken regarding Mr . Carr were based on legitimate, non-discriminatory business reasons that had nothing to do with his race . Mr . Carr offers no evidence of race discrimination, and accordingly, summary judgment should be entered on all of his discrimination claims .

Similarly, summary judgment should be granted on Mr . Carr's

IIED claim because this claim is based on nothing other than his allegations of race discrimination, which cannot, under Georgia

law, constitute IIED . Finally, summary judgment must be granted on Mr . Carr's FLSA claims because he was not an employee under the

FLSA and he never worked any unpaid overtime hours for WCW .

II . STATEMENT OF FACTS

A. WCW's Business

WCW created, produced, and marketed professional wrestling

programs during the 1990s through March 2001 . (Affidavit of Diana

Myers ("Myers Aff .") $ 3 (copy attached as Exh . A)) . WCW's

9515363.ooc 2 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 63 of 296 f

wrestling programs were seen by live audiences and/or aired on various television networks and pay-per-view systems . Id .

Wrestlers in WCW's programs provided their services as independent contractors, either under formal Independent Contractor Agreements or without written contracts . (Id . at q 9) . WCW's programs were created by writers and producers, with the goal of entertaining wrestling fans and general audiences nationwide . (Id . at 9 3) .

After having much commercial and financial success in the mid

to late 1990s, WCW's business suffered a sharp downturn . (Myers

Aff . 11 5) . In 1999, WCW was losing significant sums of money, and

so it began reducing the number of talent it contracted with and

the compensation of existing talent, and began producing fewer and

fewer wrestling programs . Id . WCW even terminated some of its

wrestling programs in early 2000 . Id . Accordingly, in 1999 and

over the next two years, WCW had less and less need for wrestling

services . (Id . at 91 6) . Despite WCW's efforts, the business

downturn did not stop, and in March 2001, WCW sold its principal

assets and closed its operations . (Id . at 11 7) . After this sale

was completed, WCW changed its name to Universal Wrestling

Corporation to close up remaining corporate operations . Id .

g . Mr . Ca=r's Background And Relationship With WCW .

Mr . Carr first came to WCW in 1995 for a try out to train as

a professional wrestler . (Deposition of Tony Carr (hereinafter

951516 J.DOC 3 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 64 of 296

f f t l

"Carr Dep ."i at 25) . Mr . Carr tried cut and was invited to train at WCW's training facility, known as the Power Plant . (Id . at

2g) . Mr . Carr, like other trainees, paid WCW to train at the

Power Plant . (Id . at 29, 33, 93) . After completing his initial training period, Mr . Carr continued to work out at the Power Plant through 1999 while holding jobs with other employers- (Id . at 11-

12, 34, 93, 62, 87) . During this time, Mr . Carr provided occasional, infrequent wrestling services to WCW, receiving a flat fee each time he wrestled with WCW . (Id . at 45-96, 50, 89) .

In 1998 and 1999, Mr . Carr also provided services to WCW's ring crew as an independent contractor . (Id . at 62-69) . The ring crew consisted of individuals who, working in teams of two, were

responsible for the wrestling rings used for the matches . (Id . at

107 ; Affidavit of Joseph Hamilton ("Hamilton Aff .") 9[ 6 (copy

attached as Exh . B)) . The ring crew transported the ring to each

match ; set up the ring ; maintained and cleaned it before, during

and after the matches ; and broke down the ring and hauled it to

the next match . (Carr Dep . at 63, 109-110 ; Hamilton Aff . 11 6) .

Mr . Carr was paid a flat fee each time he provided these ring

transport services . (Carr Dep . at 45-46, 50, 89) .

In 1998, WCW decided to move the Power Plant from its

previous location on Carroll Drive in Smyrna, Georgia to a new

location on Log Cabin Drive, also in Smyrna . (Id . at 87 ; Myers

951536 1DOC Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 65 of 296 t a

Aff . 19 ; Hamilton Aff . 14) . This new Power Plant facility was established specifically to work with a smaller group of wrestler trainees rather than the large, undefined number that had been working out at the previous location . (Myers Aff . 1 9 ; Hamilton

Aff . 1 9 : Affidavit of James Morrison ("Morrison Aff .") 4 5 (copy attached as Exh . C)) . This smaller group of wrestlers training at the new facility were signed to Independent Contractor Agreements with WCW . (Myers A£f . 1 10 ; Morrison Aff . 1 6) . Previously, Mr .

Carr and other individuals working out at the Power Plant were non-contract independent contractors paid a flat fee each time they participated in a WCW event . (Myers Aff . 11 10) .

After evaluating the individuals who were then training at the Power Plant, including Mr . Carr, WCW selected approximately twelve trainees to continue training at the new facility and to be offered independent Contractor Agreements . (Morrison Aff . 9l 8) .

This selection process involved the evaluation of these individuals' wrestling skills, physique, and demeanor and their drive, ambition, and raw potential to become successful professional wrestlers . Id . Mr . Carr was not among the roughly twelve individuals selected to train at the new facility because he lacked unique wrestling skills, physique, demeanor, and the raw potential to become a successful professional wrestler worthy of

951536 3.ooc 5 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 66 of 296

being compensated to train or having his professional services

contracted to WCW . (Id . ; Carr Dep, at 87) .

In 1999, after the move to the new location, Joseph Hamilton, who was responsible for WCW's ring crew, offered Mr . Carr a

position as a ring crew employee . (Carr Dep . at 97, 109 ; Hamilton

Aff . 11 7) . Unlike wrestling on a non-contract basis, the ring

crew job provided steady work as an employee of WCW, with better

compensation . (Hamilton Aff . q 7 ; Carr Dep . at 105) . Mr . Carr

accepted the job and remained a ring crew employee until WCW

ceased its operations in March 2001 and discharged its employees .

(Myers Aff . 1 12 ; Carr Dep . at 107, 114) .

III . ARGUMENT AND CITATION OF AUTHORITY

A . Defendant TSI Is Entitled To Summary Judgment On All Of Plaintiff's Claims Because There Is No Basis For Vicarious Liability Of TSI .

All of Mr . Carr's claims involve allegations against WCW .

WCW, not TSI, is the entity for whom Mr . Carr performed services

as an independent contractor ; WCW is the entity that employed him

from 1999 to 2001 on its ring crew ; and WCw is the entity that

paid Mr . Carr for these services . (Carr Dep . at 95-96, 50, 62-69,

89, Exh . 9) . As Mr . Carr admits, he never had any interaction

with anyone at TSI . (Id . at 159-55) .

Mr . Carr wants to "pierce the corporate veil" and assert

liability against TSI under agency, alter ego, or joint venture

951536 3.ooc 6 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 67 of 296 f f t

theories . (See Second Amended Complaint, YIYI 3%-4U) . Despite the sweeping allegations of his Complaint, Mr . Carr can offer no evidence of any agency, alter ego, or joint venturer relationship between TSI and WCW . (Carr Dep . at 159-57) . While WCW and TSI are sister subsidiaries of a common parent, there is no evidence that WCW acted as the agent or alter ego of TSI or as a joint venturer with TSI . Id . Mere allegations that two corporations are related, even as parent and subsidiary, are insufficient to create vicarious liability between the corporations . Soerries v .

Dancause , 596 S .E .2d 356, 358 (Ga . App . 2001) . Corporations normally use their subsidiaries to promote their own purposes, but this does not lead to piercing the corporate veil or vicarious liability, absent evidence of fraud or a sham corporation .

Florida Shade Tobacco Growers, Inc . v . Duncan , 256 S .E .2d 695 (Ga .

App . 1979) ; Boafa v . Hosp . Corp . of America , 338 S .E .2d 977, 979

(Ga . App . 1985) . Mr . Carr can offer no evidence of any relationship between TSI and WCW that would support any theory for vicarious liability against TSI . Therefore, TSI is entitled to summary judgment on all of Mr . Carr's claims . See, e .q . , Williams

Plaza Inc . v . Sedgefield Sportswear Div . of Blue Bell, Inc . , 297

S .E .2d 342, 393 (Ga . App . 1982) (summary judgment granted to corporation where "there is no evidence that the [affiliated] corporation `was a sham, or that it was used to defeat a public

951536 7.DOC Case 1:00-cv-01716-CC Document 125 Filed 02/24/03.. Page 68 of 296 f

,,..~ .~~nie :cc, to , ~tifr wrong, pI:o_-_ect icauu, defend crime, or any other reason which in equity and good conscience would justify the disregard of its separate entity"') .'

g, Any Of Plaintiff's Claims Based On Events Occurring Prior To July 10, 1998 Are Barred By The Applicable Statutes Of Limitations .

The U .S . Supreme Court has characterized a claim under 92

U .S .C . § 1981 as a personal injury cause of action to which state

statutes of limitations for personal injury actions apply .

Alexander v . Fulton Cnty ., GA, 207 F.3d 1303, 1396 (11th Cir .

2000) . For § 1981 claims brought in federal courts in Georgia,

"the applicable statute of limitations is found in O .C .G .A . § 9-3-

i3 and is G years ." Butler v . Matsushita Comm . Zndns . Corp . of

U .S .A . , 203 F .R .D . 575, 582 (N . D . Ga . 2001) . Mr . Carr filed his

Complaint on July 10, 2000 . Accordingly, any of his claims based

on events arising prior to July 10, 1998 are barred as a matter

of law . Alexander , 207 F .3d at 1346 Butler , 203 F .R .D . at 582 .2

Should the Court find that TSI is somehow vicariously liable to Mr . Carr, TSI is nonetheless entitled to summary judgment on Mr . Carr's claims on all of the same grounds as WCW . With respect to Mr . Carr's Title VII claim, a Charge of Discrimination must be filed with the EEOC within 180 days from the date of the alleged discriminatory act . 92 U .S .C . § 2000e- 5(e) . Mr . Carr filed his Charge of Discrimination on May 10, 2000 . Thus any Title VII claim by Mr . Carr arising more than 180 days before he filed his Charge, or before November 12, 1999, is barred by Title VII's statute of limitations as well . Mr . Carr's FLSA claim, discussed infra , is also subject to a two-year statute of limitations, similar to his § 1981 claim . See 951536 7 .DOC 8 -- Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 69 of 296

Aff AF it %

It is undisputed that many of the actions alleged by Mr . Carr to have created a supposedly racially hostile work environment at

WCW occurred (if at all) prior to July 10, 1998 . (Carr Dep . at

99-50, 87, 92-93, 166-167) . Likewise, it is undisputed that much of the conduct made the basis of Mr . Carr's claim that he was denied opportunities to provide wrestling services to WCW occurred before July 10, 1998 . (Carr Dep . at 25, 95-46) . Any claims of a hostile work environment or other types of discrimination based on these events are barred by the applicable statutes of limitations .

In addition, any other § 1981 claims based upon events occurring before July 10, 1998, also are time-barred . Mr . Carr obviously knew of these alleged discriminatory acts before he filed his

Complaint : Mr . Carr alleges that he was aware of WCW's alleged discriminatory actions as early as 1998, if not before . (Carr

Dep . at 137) . A plaintiff "who knowingly fails to seek relief is exactly the danger Congress was trying to protect against in establishing the statute of limitations ." Butler , 203 F .R .D . at

583 . Thus, any claims that Mr . Carr was subjected to a racially hostile work environment or otherwise discriminated against prior to July 10, 1998 are time-barred, and summary judgment should be granted on these claims .

29 U .S .C . § 255 . Accordingly, any claim for wages allegedly due for work performed before July 10, 1998 is also barred . 951536 3.noc 9 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 70 of 296

C . Mr . Carr Cannot Produce Any Evidence That He Was Discriminated Against On The Basis Of His Race .

1 . Federal Discrimination Laws Are Not Vehicles For General Judicial Review Of Business Decisions .

Title VII and § 1981 are not vehicles for general judicial review of business decisions . Discrimination laws were "not intended to diminish traditional management prerogatives ." Texas

Dep t of Community Affairs v . Burdine , 950 U .S . 298, 259 (1981) .

Nor do these laws "limit an employer's right to exercise his informed judgment as to how to best run his shop ." Gilchrist v .

Bolger , 733 F .2d 1551, 1553-59 (11th Cir . 1986) . This Court's role is to prevent unlawful practices, "not to act as a `super personnel department' that second-guesses employers' business judgments ." Lee v . GTE Florida, Inc . , 226 F .3d 1299, 1259 (11th

Cir . 2000), cert . denied, 121 S . Ct . 1986 (2001) .

2 . Mr . Carr Is Required To Present Substantial Evidence That WCW Actually And Intentionally Discriminated Against Him On The Basis Of His Race .

In a disparate treatment case such as this one, Mr . Carr must prove "intentional discrimination ." Burdine , 950 U .S . at 256;

Reeves v . Sanderson Plumbing Prod ., Inc . , 530 U .S . 133, 153

(2000) . In such a case, "[p]roof of discriminatory motive is critical ." Teamsters v . United States , 931 U .S . 324, 335-36 n .15

(1977) . Mr . Carr must carry the initial burden of establishing a prima facie case of discrimination . McDonnell Douglas Corp . v .

9515363mc 10 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 71 of 296

Green , 911 U .S . 792 (1973) . Even if tie can establish a prima facie case, WCW's burden is merely to offer evidence, but not persuade, showing that the actions complained of were taken for a

"legitimate, nondiscriminatory reason ." Reeves , 530 U .S . at 142 .

Once such a reason is articulated, any presumption of discrimination arising out of the prima facie case "simply drops out of the picture ." St . Mary's Honor Center v . Hicks , 509 U .S .

502, 510-11 (1993) . Mr . Carr must then "prove by a preponderance of the evidence that the legitimate reason (s) offered . . . were

not the) true reasons, but were a pretext for discrimination ."

Burdine , 950 U .S . at 253 ; see Reeves , 530 U .S . at 193 . Mr . Carr

must present "concrete evidence in the form of specific facts

which show that [WCW's] proffered reason is mere pretext .

Conclusory allegations and assertions will not suffice ." Earley

v . Champion Int'1 Corp . , 907 F .2d 1077, 1081 (11th Cir . 1990) .

"The ultimate burden of persuading the trier of fact that

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff ." St . Mary's Honor

Center , 509 U .S . at 507 (quoting Burdine , 950 U .S . at 253) .

3 . Mr . Carr Cannot Produce Any Evidence That He Was Denied Wrestling Opportunities Because Of His Race .

Most of Mr . Carr's allegations boil down to a "failure-to-

hire" type claim. He alleges that since 1998, WCW failed to

provide him with opportunities to wrestle, both on a non-contract,

951516 3 .00C 11 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 72 of 296

independent contractor basis and under an !-dependent Contractor

Agreement . Mr . Carr, however, cannot produce any evidence that

WCW actually and intentionally refused to give him wrestling

opportunities "because of" his race . Oncale v . Sundowner Offshore

Services, Inc . 523 U .S . 75, 78 (1998) (quoting 92 U .S .C . § 2000e-

2(a)(1)) . Further, Mr . Carr cannot produce any evidence that

WCW's legitimate, nondiscriminatory reasons for its decisions were

false and a mere pretext for unlawful discrimination .

(a) Mr . Carr Cannot Establish A Prima Facie Case Of Races Discrimination in WCW's Not Providing Him With Additional Wrestling Opportunities .

In a "failure-to-hire" type case, establishing a prima facie

case requires evidence to demonstrate that plaintiff : (1) is a

member of a protected minority (2) was qualified for and applied

for a position for which the defendant was accepting applications ;

(3) was rejected despite these qualifications ; and (9) after this

rejection the position remained open or was filled by a person

outside his protected class . Schoenfield v . Babbitt , 168 F .3d

1257, 1267 (11th Cir . 1999) ; Welborn v . Reynolds Metals Co . , 810

F .2d 1026, 1028 (11th Cir . 1987) . Here, Mr . Carr cannot establish

the second or fourth elements of his prima facie case because he

cannot establish that wrestling opportunities were available that

he was qualified for but did not receive .

951536 I.DOC 12 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 73 of 296

! a~

While Mr . Carr provided occasional, infrequent services to

WCW as a wrestler, he claims that in 1998 and 1999, he should have

received additional wrestling opportunities . It is undisputed, however, that Mr . Carr did not receive more opportunities because

he lacked unique wrestling skills, physique, demeanor, and other

characteristics of WCW's better performers . (Morrison Aff . 1 9) .

Mr . Carr's wrestling character, style, and persona were not particularly interesting, unique, or entertaining . Id . Further,

by early 1999, WCW was already experiencing and responding to a

business downturn and had less need for wrestling talent . (Myers

Aff . 4$ 5-6) . WCW was in no position to give additional

opportunities to lesser performers . (Id . : Morrison Aff . 11 9) .

Because Mr . Carr cannot dispute that there were fewer

opportunities available and he was considered a lesser performer,

he cannot make out a prima facie case .

Mr . Carr further claims that he should have been awarded an

Independent Contractor Agreement with WCW . (Carr Dep . at 51-52,

116) . But Mr . Carr offers no evidence that he was qualified for

such a contract with WCW, and the undisputed evidence shows he was

not judged to be a sufficient performer to warrant a contract .

Mr . Carr had only limited experience as a wrestler, and he lacked

unique wrestling skills, physique, demeanor, and the raw potential

to become a successful professional wrestler worthy of being

951536 J .DOC 13 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 74 of 296

cemper.sai.eu ti: =iai :i 0L : :aviry iiis professional services contracted to WCW . (Carr Dep . at 95-96 ; Morrison Aff . 14 9, 8) .

This is why he was not chosen to receive a contract . (Morrison

Aff . !1 8) . Because he cannot show that he was qualified for an

Independent Contractor Agreement or possessed the skills and talent to be a contract performer, Mr . Carr cannot make out a prima facie case on this claim .

(b) WCW Has Articulated Nondiscriminatory Reasons For Not Providing Mr . Carr With Additional Wrestling Opportunities .

WCW has clearly articulated legitimate, nondiscriminatory reasons for Mr . Carr's not receiving more wrestling opportunities or a contract with WCW, and Mr . Carr can offer no evidence that these reasons are a pretext for unlawful discrimination . As shown above, (1) WCW had fewer wrestling opportunities available, and

Mr . Carr was not considered a sufficient performer appropriate to be used for those appearances ; and (2) Mr . Carr was not qualified

for an Independent Contractor Agreement . 3 These reasons constitute

That some of the qualifications for being a professional wrestler, such as demeanor or raw potential, involve subjective considerations in no way diminishes WCW's legitimate, nondiscriminatory reasons for selecting other wrestlers over Mr . Carr . Denney v . City of Albany , 297 F .3d 1172, 1185 (11th Cir . 2001) ("an employer's use of subjective factors in making a hiring or promotion decision does not raise a red flag") ; Chapman v . Al Transport , 229 F .3d 1012, 1039 (11th Cir . 2000) (federal anti- discrimination statutes do not "deprive an employer the ability to rely on important criteria in its . . . decisions merely because those criteria are only capable of subjective evaluation") . 95is36 3noc 14 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 75 of 296

legitimate, nondiscriminatory reasons for WCW's actions . Thus,

the burden shifts to Mr . Carr to "directly persuade the court that

a discriminatory reason more likely motivated [WCWj or indirectly

(prove discrimination] by showing that [WCW]'s proffered

explanation is [pretextual and] unworthy of credence ." Burdine ,

950 U .S . at 255 (1981) . This Mr . Carr cannot do .

To establish pretext, Mr . Carr must present "concrete evidence in the form of specific facts which show that the [WCW]'s proffered reason is mere pretext ." EarleY , 907 F .2d at 1081 . Mr .

Carr's assertion of his subjective belief that discrimination

occurred is not enough . Id . ; Elliott v . Grp . Med . & Sur . Serv . ,

714 F .2d 556, 567 (5th Cir .), cert . denied , 967 U .S . 1215 (1999),

The undisputed evidence is that opportunities to wrestle for

WCW on a non-contract basis were diminished at wCW post-1998, and

because Mr . Carr had onlv limited experience as a wrestler and

lacked the unique wrestling skills, physique, demeanor, and other characteristics consistent with wrW's better performers, he did

not receive those opportunities, nor an Independent Contractor

Agreement with WCW . (Myers Aff . A 6; Morrison~Aff . qq 9, 8) . Mr .

Carr's mere opinion that he was better qualified than wrestlers

who appeared on WCW shows or were awarded contracts because he

"trained at the Power Plant and these guys never trained anywhere"

is insufficient . (Carr Dep. at 119) . It is well-settled that "an

951536 3.DOC 15 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 76 of 296 f t

employee's own opinions about is quaiificai.iuiia 6v nuL give rise to a material factual dispute ." Lee, 225 F .3d at 1259 (quoting

Simms v . Oklahoma ex rel . Dept . of Mental Health s Substance Abuse

Svcs ., 165 F.3d 1321, 1329-30 (10th Cir .), cert . denied, 120 S .

Ct . 53 (1999)) ; Ramsey v . Leath , 706 F .2d 1166, 1170 (11th Cir .

1983) ; see also Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir .

1997) ('The inquiry into pretext centers upon the employer's beliefs, and not the employee's own perception of his performance .") . Mr . Carr cannot substitute his own subjective

judgment for WCW's judgment about how to weigh time spent training

at WCW's facility against wrestling skills, persona, and other

traits necessary to be a wrestler with WCW . See Lee, 226 F .3d at

1259 (court's role is "not to act as a `super personnel

department' that second-guesses employer's business judgments") ;

Nix v . WLCY Radio/Rahall Comm . , 738 F .2d 1181, 1187 (11th Cir .

1989) (refusing to overturn an employer's decision that may seem

"unfair" to outside observers) ; Meiri v . Dacon, 759 F .2d 989, 995

(2d Cir .), cert . denied, 979 U .S . 829 (1985) ("courts must refrain

from . . . second-guessing a business's decision-making process") .

The only other "evidence" of discrimination that Mr . Carr

offers is his own self-serving statement that he was denied

opportunities to wrestle "because they [WCW] were racist ." (Carr

Dep . at 120-121) . This baseless allegation does not satisfy his

visas 3.ooc 16 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 77 of 296

I f

burden of proving pretext . Mr . Carr presents no "concrete evidence in the form of specific facts" to show that WCW's proffered reasons are pretextual ." EarleY , 907 F .2d at 1081 . In short, none of Mr . Carr's proffered testimony establishes that

WCW's reasons for not providing him with additional wrestling opportunities or a contract are pretextual . Mr . Carr has offered nothing but "conclusory assertions," which are insufficient to defeat summary judgment . Id .

Mr . Carr may attempt to demonstrate pretext by pointing to an alleged statement by Joseph Hamilton that "we'-'re no't hiring any blacks ." (Carr Dep . at 59-55, 90-91) . Even assuming, for purposes of summary judgment only, that this alleged comment was in fact made, it is irrelevant to the issue of pretext in this case . Mr . Hamilton did not decide whether to offer Independent Contractor Agreements to wrestlers . (Hamilton Aff . 1 5) . As Mr . Carr concedes, he does not even know who made the decisions regarding contracts or what factors went into those decisions . (Carr Dep . at 55-56, 90-91, 96) . The Eleventh Circuit "has explained that comments by non-decisionmakers do not raise an inference of discrimination" at the pretext stage . Mitchell v . USBI Co . , 186 F .3d 1352, 1355 (11th Cir . 1999) ; see Miller v . Bed, Bath & Beyond, Inc . , No . CV 01-139-1277-5, 2002 WL 219762, at *14 (N .D_ Ala . Jan . 31, 2002) ("comments indicating an improper bias By- non-decisionmakers generally do not raise an inference of di-scrimination or pretext on the part of the employer") . Accordingly, Mr . Hamilton's alleged comments are insufficient to establish pretext . Mitchell , 186 F .3d at 2355 ; Fletcher v . ADT Sec . Services, Inc . , No . 1 :99-CV-0509-CC, 2000 WL 33231616, at *10 (N .D . Ga . Dec_ 7, 2000) ("Statements made by a no n-decisionmaker . a mr-Pet---relevant to the issue of whether a decisionmaker's reas~for firing an employee are pretextual" (citing Price Waterhouse v . Hopkins , 490 U .S . 228, 277 (1989)) . 951536 3-00C 17 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 78 of 296

! ~-

w v.. n, .... n___ ..~ n__~..~- r--_ c~-_ ...i_~ y . au_ ~.oii a..niu~v~. rivuua ..c- .2y cviucaauv ltldl. %IVII CA14 Him Less Than Similarly Situated Individuals Because Of His Race .

To establish a prima facie case of discriminatory pay, Mr .

Carr must show that he was "paid less than a member of a different

race was paid for work requiring substantially the same

responsibility ." Pittman v . Hattiesburg Mun . Separate Sch . Dist . ,

649 F .2d 1071, 1079 (5th Cir . 1981) . Here, Mr . Carr cannot

establish that he was paid less than anyone who worked in a

substantially similar position . Mr . Carr limits his pay claim to

the time that he was an employee on WCW's ring crew . (Carr Dep_

at 128-130) . Mr . Carr asserts that he was paid less than his

fellow ring crew employee Mike Wenner . (Id . at 105-106, 129-130) .

In fact, the undisputed evidence is that Mr . Carr was paid more

than Mr . Wenner for performing the same job . (Myers Aff . 1 12) .5

Accordingly, Mr . Carr cannot establish a prima facie case of

discriminatory pay, and summary judgment should be granted .

The foregoing discussion illustrates that Mr . Carr has

utterly failed to meet his burden of producing "significant

probative evidence" of intentional race discrimination . Clark ,

717 F.2d at 529 n .5 . There is simply no evidence that WCW

discriminated against Mr . Carr due to his race at any time, or in

5 Mr . Carr's hearsay statement that Mr . Wenner said he made $51,000 per year does not create a factual dispute . Indeed, Mr . Carr admits that Mr . Wenner could have been wrong about his salary or could have been making it up . (Carr Dep, at 105-106) . 951536iooc 18 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 79 of 296 I f f

L any form of ia JI l1G1, U ecause "( : : ;ondiscriwinatory reasons jus[ as readily explain [any alleged] difference in treatment ." Id, at

1186 . This Court therefore should enter summary judgment on all of Mr . Carr's discrimination claims because he has failed to "put on sufficient evidence to allow a factfinder to disbelieve [WCW's] proffered explanation for its actions ." Combs v . Plantation

Patterns , 106 P .3d 1519, 1532 (11th Cir . 1997), cert . denied , 522

U .S . 1095 (1998) .6

5 . Mr . Carr Cannot Produce Any Evidence Of A Racially Hostile Work Environment .

To succeed with his hostile environment claim, Mr . Carr must demonstrate that the alleged actions of WCW "altered the condition of the workplace, creating an objectively abusive and hostile atmosphere ." Edwards v . Wallace Community College , 99 F .3d 1517,

1521 (11th Cir . 1995) (citing Harris v . Forklift Sys ., Inc . , 510

U .S . 17, 21 (1993)) . "For example, the racial slurs allegedly

Summary judgment should also be entered on any retaliation claim brought by Mr . Carr . Although he asserts that WCW retaliated against him for filing the instant lawsuit, Mr . Carr cannot demonstrate that WCW took any adverse action against him in retaliation for filing his Complaint or otherwise . (Carr Dep . at 133, 135-36, 138-39) . A retaliation claim requires proof of three elements : (i) engaging in statutorily protected conduct ; (ii) suffering an adverse employment action ; and (iii) a causal connection between the adverse action and the protected conduct . Farley v . Nationwide Mut . Ins . Co . , 197 F .3d 1322, 1336 (11th Cir . 1999) . Mr . Carr cannot provide any evidence that he suffered any adverse employment action after filing his lawsuit . (Carr Dep . at 133, 135-36, 138-39) . Nor can he show any causal relation between any action and the filing of his Complaint . Accordingly, summary judgment should be granted on Mr . Carr's retaliation claim. 9515761DOC 19 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 80 of 296

a t

_ 1 ..J L. .. \ ~.J J_ . J~VRCI! had LO VC so _l~!IL!IV!1~1_71diy1dS _1.C, overt and VCll .1 :-1y l1ldL they created an atmosphere charged with racial hostility ."' Id .

Factors to consider include the frequency and severity of the alleged discriminatory conduct, whether the conduct was threatening or humiliating, and whether it unreasonably interfered with Mr . Carr's work performance . Id . at 1521-22 .

Even assuming arguendo the truth of every incident Mr . Carr describes to support his claim, these incidents are insufficient as a matter of law to create a racially hostile work environment .

The alleged discriminatory conduct was far from "commonplace ;" it was not harsh or severe ; and it was not physically threatening .

(Carr Dep . at 94-95, 97-100, 103) . Nor did the conduct affect Mr .

Carr's performance at WCW . In fact, he continued performing his job on the ring crew without impact until WCW completely closed down . (Myers Aff . 1 12 ; Carr Dep . at 107, 114) . Simply put, Mr .

Carr can offer no evidence of the kind of "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment ." Harris v . Forklift

Systems , 510 U .S . at 21 ; Wallace , 99 F .3d at 1521 . Accordingly, summary judgment should be granted on Mr . Carr's hostile environment claim .

951536 Iooc 20 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 81 of 296

D . Summary Judgment Should Be Granted On Mr . Carr's S'ta'te Law Intentional Infliction Of Emotional Distress Claim,

To establish a claim for intentional infliction of emotional distress ("IIED") under Georgia law, a plaintiff must establish four elements : (1) intentional or reckless conduct, and (2) extreme and outrageous conduct by the defendant ; (3) severe emotional distress suffered by the plaintiff ; and (9) a causal connection between the conduct and the emotional distress .

Hendrix v . Phillips, et al . , 928 S .E .2d 91, 92-93 (Ga . App . 1993) .

To be "extreme and outrageous," the alleged conduct must be "so terrifying or insulting as naturally to humiliate, embarrass or _frighten" the plaintiff and so severe that "no reasonable man could be expected to endure" these actions . Beck v . Interstate

Brands Corp . , 953 F .2d 1275, 1276 (11th Cir . 1992) . Liability for

IIED does not extend to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities ." Ward v .

Papa's Pizza To Go, Inc . , 907 F . Supp . 1535, 1590 (S .D . Ga . 1995) .

Thus, when a plaintiff alleges that conduct such as race discrimination constitutes IIED, he must provide more than just allegations of discrimination . Rather, the alleged conduct must be severe, such as an on-going pattern of explicit and oppressive harassment that includes or resembles a physical assault, see

Coleman v . Hous . Auth . of Americus , 381 S .E .2d 303 (Ga . App,

1989), or racial epithets and race-based decisions in carrying out

951536 a.ooc 21 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 82 of 296

d contract combined ::iii eiiLicrk-ic and graphic =i:1CdL5 of CCQlly

harm, dismemberment and death, see Brown v . Manning , 769 F . Supp .

183, 185 (M .D . Ga . 1991) .

Here, Mr . Carr cannot meet this high burden of establishing

the required level of outrageous conduct . Rather, Mr . Carr

testified that there is nothing other than WCW's alleged

discrimination that caused him emotional harm . (Carr Dep . at

132) . Because Mr . Carr must establish more than just allegedly

discriminatory conduct to proceed with his claim for IIED, summary

judgment should be entered on this claim . Beck, 953 F .2d at 1276

(discharge of employee for allegedly discriminatory reasons

insufficient to support IIED claim) ; Ward, 907 F . Supp . at 1592

(repeated refusal to hire an individual under circumstances that

could constitute unlawful discrimination insufficient to establish

IIED claim) ; Borden v . Johnson , 395 S .E .2d 628 (Ga . App . 1990)

(demotion or discharge for whatever reason, even a discriminatory

reason, does not give rise to IIED claim) .

E . Plaintiff's FLSA Claims Have No Merit .

1 . Mr . Carr Was Not An Employee Of WCW During The Relevant Time Period .

Mr . Carr asserts that WCW failed to pay him the minimum wage

and overtime, as required by the FLSA, during the time he was

training at the Power Plant and providing wrestling services to

951536 a_ooc 22 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 83 of 296

WCW . (Complaint 91 54-65 ; Carr Dep_ at 140) .' The FLSA, however, provides minimum wage and maximum hour protection only to employees as defined therein . 29 U .S .C . §§ 203(e) (1) and (g),

206(a), and 207(a) . As shown below, Mr . Carr cannot demonstrate that he was an "employee" of WCW during the time for which he brings claims for minimum wage and overtime pay .

To determine whether an FLSA-covered employer/employee relationship exists, courts "look not to the common law definitions of those terms, . . . but rather to' the `economic reality' of all the circumstances concerning whether the putative employee is economically dependent upon the alleged employer ."

Aimable v . Long and Scott Farms , 20 F .3d 939, 939 (11th Cir . 1994)

(emphasis added) (citing RutherLord Food Corp . v . McComb , 331 U .S .

722, 730 (1997)) . Where an individual provides services to several different companies, performs his services by the job rather than on a more permanent basis, uses his own material, and exercises control over the manner in which he performs his services, he is in "economic reality" an independent businessman, not an employee covered by the PLSA . Donovan v . Tehco, Inc . , 592

F .2d 191, 193-99 (5th Cir . 1981) .

Mr . Carr does not claim that he was not paid minimum wage or overtime during his employment on WCW's ring crew, (Carr Dep, at 190) . 9515363mc 2 3 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 84 of 296

Applying the "economic reality" test to Mr . Carr, during the time he was training at the Power Plant and providing services to

WCW as a wrestler he was in reality an independent businessman .

He "worked for several other [employers] during the period at issue, invariably worked by the job rather than by the hour, supplied his own materials on occasion, and possessed complete independence in" deciding when and whether to come to the Power

Plant and train . Id . at 990 ; (Carr Dep . at 93-99, 48, 50, 61-62,

69-70) . He also filed federal income tax returns as a sole proprietorship, listing his income from WCW as "nonemployee compensation ." (Id . at Exh . 9) . These undisputed facts demonstrate, as a matter of "economic reality," that Mr . Carr was

not "economically dependent upon" WCW . Aimable , 20 F .3d at 939 .

Accordingly, he was not an employee under the FLSA, and WCW is

entitled to summary judgment on Mr . Carr's FLSA claims . Id . ;

Donovan v . Tehco, 542 F .2d at 143-94 .

2 . Mr. Carr Did Not Work Any Overtime During The Relevant Time Period .

Mr . Carr's claim for overtime pay also fails because he did

not work more than forty (90) hours in any workweek . The F'LSA

requires an employer to pay overtime only if an employee is

required to work "a workweek longer than forty hours ." 29 U .S .C .

§ 207(a)(1) . As Mr . Carr admitted, he never performed more than

five or six hours of work per week for which he claims he should

9515363.ooc 24 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 85 of 296

s f l

have been paid but was not paid (Carr Dep . at 140-43) . Since

Mr . Carr concedes that the work for which he is claiming overtime never involved work hours in excess of forty hours per week, WCW is entitled to summary judgment on Mr . Carr's overtime claims . 29

U .S .C . § 207(a)(1) .

IV . CONCLUSION

For all of the foregoing reasons, Defendants' Motion for

Summary Judgment should be granted .

This 8th day of March, 2002 .

TROUTMAN SANDERS LLP (-'s JOHN J . DALTON.~+ . ,a Georgia Bar No . 203700 JAMES A . LAMBERTH Georgia Bar No . 931851 EVAN H . PONTZ Georgia Bar No . 583577

Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, GA 30308-2216 (404) 885-3000

Attorneys for Defendants Universal Wrestling Corporation (f/k/a World Championship Wrestling, Inc .) and Turner Sports, Inc .

9515M 7.DOC 25 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 86 of 296

J'cnTle iiiiTlvi3

Pursuant to Local Rule 7 .1(D), I certify that this Memorandum of Law has been prepared with one of the fonts and point

selections ("Courier New 12") approved by the Court in Local Rule

5 .1(B)_

This 8th day of March, 2002 .

Evan H . Pontz v TROUTMAN SANDERS LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, GA 30308-2216 (909) 885-3000 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 87 of 296

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

TONY BYRON CARR,

Plaintiff, 1 v CIVIL ACTION FILE NO . 1 :00-CV-1721-CC WORLD CHAMPIONSHIP WRESTLING, INC .,) and TURNER SPORTS, INC ., 1 Defendants .

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of this

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR SUMtdARY

,NDGMENT upon the interested parties by depositing a copy of same in the U .S . Mail, properly addressed with adequate postage, to :

Lee Breedlove 1st Union Bank Building 250 E . Ponce DeLeon Avenue Suite 925 Decatur, Georgia 30030

This 8th day of March, 2002 .

Evan H . ntz TROUTMAN SANDERS LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, GA 30308-2216 (909) 885-3000 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 88 of 296 f f t

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

TONY BYRON CARR, )

Plaintiff, ) f CIVIL ACTION FILE o . ) NO . 1 :00-CV-1721-CC WORLD CHAMPIONSHIP WRESTLING, INC .,) and TURNER SPORTS, INC ., )

Defendants . )

AFFIDAVIT OF DIANA IUKRS

DIANA MYERS, who having personally appeared before the undersigned officer duly authorized to administer oaths and having been first duly sworn according to law, deposes and states the following :

1 . My name is Diana Myers . I am of majority age, and I give this testimony of my own free will . I have personal knowledge of and am competent to testify to the facts stated herein . The facts stated herein are true and correct .

2 . Z was employed by Universal Wrestling Corporation

(f/k/a/ World Championship Wrestling, Inc . and hereinafter referred to as "WCW") beginning in October 1997 and most recently held the title of Vice President of Business and Legal

Affairs . In my position at WCW, I was familiar with virtually all aspects of WCW's business and legal affairs . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 89 of 296

3 . WCW created, produced, and marketed professional

wrestling programs during the 1990s and through March 2001 .

WCW's wrestling programs were seen by live audiences and/or

aired on various television networks and pay-per-view cable and

satellite systems . WCW's wrestling programs, both live and

taped, were created by writers and producers at WCW, with the

goal of entertaining wrestling fans and general audiences

nationwide .

9 . WCW's wrestling programs included appearances by many

types of live or "on-screen" talent, including wrestlers, match

referees, and other wrestling talent appearing on camera or at

live (but non-televised) events . These individuals appearing in wrestling programs provided their services to WCW as independent

contractors, either through formal Independent Contractor

Agreements or without written contracts .

5 . WCW had much commercial and financial success during

the mid to late 1990s . In 1999, WCw's business suffered from a

sharp downturn and WCW was losing significant sums of money .

Therefore, WCW began downsizing it operations by reducing the

number of talent it contracted with, reducing the compensation

of existing talent, and producing fewer and fewer wrestling

programs . As part of the downsizing, WCW considered canceling

some of its shows . In early 2000, WCW in fact terminated some Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 90 of 296

of its programs and also reduced the length of some of its other

remaining wrestling programs .

6 . Due to these business circumstances and WCW's

downsizing efforts, in 1999 and over the next two years, WCW had

less and less need for wrestling services, including on-screen

wrestling talent .

7 . The downsizing efforts did not stop WCw's business downturn, and in March 2001, WCW sold its principal assets and completely closed down its operations . After the sale of assets was completed, wCw changed its name to Universal Wrestling

Corporation to close up remaining corporate operations .

8 . From 1995 through approximately 1999, Mr . Carr provided occasional, infrequent services to WCW as an

independent contractor wrestler . Mr . Carr was paid a flat fee

each tune he provided wrestling services .

9 . In 1998, WCW decided to move the Power Plant from the previous location on Carroll Drive in Smyrna, Georgia to a new

location on Log Cabin Drive, also in Smyrna . This new Power

Plant facility was specifically established to work with a

smaller group of wrestler trainees rather than the large,

undefined group that had been training or working out at the

previous Power Plant location .

10 . This smaller group of wrestlers who would be training

at the new facility were given the opportunity to sign Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 91 of 296

Air E

Independent Contractor Agreements with WCW . Previously, these wrestlers had not had agreements with WCW but were non-contract independent contractors paid a flat fee each time they participated in a WCW event .

11 . After evaluating all of the individuals who were then training at the Power Plant, including Mr . Car=, WCW selected approximately twelve trainees who would be allowed to continue training at the new facility and would be offered ICAs . This selection process was based on the evaluation of these individuals' wrestling skills and persona and their display of the traits necessary to become successful professional wrestlers . Mr . Carr was not selected to train at the new facility because he was not considered among the best talents of those training at the Power Plant .

12 . In 1999, M= . Carr became an employee of WCW, working on WCW's ring crew . As a ring crew employee, Mr . Ca=r earned

$35,000 annually . Mr . Carr's co-employee on the ring crew, Mike

Wenner, who at the time held the same ring crew position as Mr .

Car=, earned $34,000 annually in that position . Mr . Carr remained an employee on the ring crew until WCW ceased its operations in March 2001, when the employees on the ring crew and elsewhere with WCW were discharged .

FURTHER AFFIANT SAYETH NAUGHT . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 92 of 296

This ~ day of February, 2002 .

DIANA MYERS

Sworn to and subsc lbed before me this day * February 2002

,o o ' -uPub I~Y' ic '"u*

My Commission Expires : Notary Public, Henry County, Geoq4 My Commissar Expires Jan . 11, 2006. Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 93 of 296

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA n~~"A i ~~Iv I V""TIT.~ION

TONY BYRON CARR, )

Plaintiff, ) CIVIL ACTION FILE v. NO . 1 :00-CV-1721-CC WORLD CHAMPIONSHIP WRESTLING, INC .,) and TURNER SPORTS, INC ., ) 1 Defendants . )

AFFIDAVIT OF JOSEPH HAMILTON

BEFORE ME, the undersigned Notary Public, appeared JOSEPH

HAMILTON, who deposes and says as follows ;

l . My name is Joseph Hamilton . I am of majority age, and

I give this testimony of my own free will . I have personal

knowledge of and am competent to testify to the facts stated herein . The facts stated herein are true and correct .

2, I was employed by World Championship Wrestling, Inc .

("WCW") through the 1990s and until March 2001, most recently as

Director of Transportation of Ring Equipment for Television .

Prior to that position, I was in charge of training programs at

WCW's Power Plant wrestling training facility located at Carroll

Drive in Smyrna, Georgia . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 94 of 296

3 . As part of my duties in charge of the wrestling training programs at the Power Plant at Cartoll Drive, I worked with WCW's wrestlers and trainees . From 1995 through

approximately 1999, Tony Carr provided occasional, infrequent

services to WCW as an independent contractor wrestler without a written agreement .

9 . In 1998, WCW decided to move its Power Plant wrestling

training facility from the location on Carroll Drive to a new

location on Log Cabin Drive, also in Smyrna . At this new Power

Plant location, WCW worked with only a smaller group of wrestler

trainees than the large number that had been training or working

out at the previous location .

5 . It is my understanding that this smaller group of

wrestlers who would be training at the new facility were

selected to sign Independent Contractor Agreements ("ICAs") with

WCW . I had no involvement in the decisions whether to offer

ICAs to wrestlers .

6 . After the Power Plant moved to the Log Cabin Drive

location, I assumed the position of Director of Transportation

of Ring Equipment for Television . In this position, I was

responsible for directing WCW's ring crew . The ring crew

consisted of a number of individuals who, working in teams of

955559-1 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 95 of 296 I J

two, were responsible for the wrestling rings used for the matches . The ring crew transported the ring to each match location : set up the ring ; maintained and cleaned it before, during and after the wrestling matches ; and then broke down the ring and hauled it to the next designated match location .

7 . Sometime after the move to the new location, Mr . Carr was offered a position as an employee on the ring crew . The ring crew jobs provided steady work, and _offered better compensation than wrestling on an independent contractor basis .

Mr . Carr accepted the position as a ring crew employee .

FURTHER AEFIANT SAYETH NAUGHT .

This 00 day of February, 2002 .

wr 0 EPH

to and subscribed ILT01Sworn before me this Z7 t4 day of February, 2002 .

Rotary Public U

My Commission Expires : Noheiy Plc; Cobb Cou*, Georgia L4fAnlnJuim F*im.s~Much 22,2004

955559-1 3 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 96 of 296

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

TONY $YRON CARR, )

Plaintiff, ) CIVIL ACTION FILE v . ) NO . 1 :00-CV-1721-CC WORLD CHAMPIONSHIP WRESTLING, INC .,) and TURNER SPORTS, INC ., )

Defendants . )

AFFIDAVIT OF JAMES A. MORRISON

BEFORE ME, the undersigned Notary Public, appeared JAMES A .

MORRISON, who deposes and says as follows :

1 . My name is James A . Morrison, professionally known as

J .J . Dillon . I am of majority age, and I give this testimony of my own free will . I have personal knowledge of and am competent to testify to the facts stated herein . The facts stated herein are true and correct .

2 . I was employed by World Championship Wrestling, Inc .

("WCW") from approximately November 1996 until March 2001 .

Prior to becoming an employee of WCW, I provided services to WCW

as an independent consultant .

3 . As part of my duties as a WCW employee, I worked with

WCW's wrestlers and trainees . During my employment with WCW,

Tony Carr provided occasional, infrequent services to WCW as an

independent contractor wrestler without a written agreement . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 97 of 296

9 . Based on my experience in the wrestling industry and at WCW, the creators, producers, and marketers of professional wrestling programming such as WCW's use their better performers with greater frequency in their wrestling programs . The reason

Tony Carr did not receive more opportunities to wrestle for WCW on an independent contractor basis was that he was not one of

WCW's better performers . Mr . Carr lacked unique wrestling skills, physique, demeanor, and other characteristics consistent with WCW's better performers . Mr . Carr's wrestling character, style and persona were not particularly interesting, unique, or entertaining .

5 . In 1998, WCW decided to move its Power Plant wrestling training facility from its original location on Carroll Drive to a new location on Log Cabin Drive . As part of my duties as a

WCW employee, I oversaw the changes in office structure and

setup that occurred when the Power Plant moved to the new

location .

6 . At the new Power Plant location, WCW elected to work

with a smaller group of wrestler trainees rather than the large

number that had been training or working out at the previous

location . This smaller group of wrestlers who would be training

at the new facility were selected to sign Independent Contractor

Agreements with WCW .

95996-1 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 98 of 296

7 . As part of my duties as a WCW employee, I evaluated the wrestler trainees who wanted to continue training at the new

location . This evaluation was based on these individuals' wrestling skills, physique, and demeanor and their drive,

ambition, and raw potential to become successful professional wrestlers .

8 . Mr . Carr was not among the roughly 12 individuals

selected to train at the new facility because in my opinion he

lacked unique wrestling skills, physique, demeanor, and the raw potential to become a successful professional wrestler worthy of

being given compensation to train or having his professional

services contracted to WCW . The decision not to select Mr . Carr

was not based in any way on his race .

FURTHER AFFIANT SAYETH NAUGHT .

This ~ day of March, 2002

MORRISON

Sworn to and subscribed before me this e7-' day of March, 20

a ~ ~~., O k01/. ~;, Notary Public * :k 4 ~ 20p1 My Commission Expires :

959996-1 3 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 99 of 296 t l

EXHIBIT / ATTACHMENT

'A (To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 100 of 296

FILED IN ~cltqws> OFF;(-: :. IN THE UNITED STATES DISTRICT COURT r FOR THE NORTHERN DISTRICT OF GEORGIA a~ 1 MAR 2 s ]0w ATLANTA DIVISION

BY: ROBERT ROSS, JR .

Plaintiff,

VS . CIVIL ACTION FILE NO . 1 :93-CV-1206-JEC WORLD CHAMPIONSHIP WRESTLING, INC .

Defendant

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT WORLD CHAMPIONSHIP WRESTLING . INC .'8 MOTION FOR SUMMARY JUrDGMEKT

COMES NOW World Championship Wrestling, Inc . ("WCW"),

Defendant in the above-styled action, and pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and Rule 220-5 of the

Local Rules to the United States District Court, Northern

District Court of Georgia, timely files this Memorandum of Law in support of its Motion for Summary Judgment .

I . INTRODUCTION

On June 1, 1993, Plaintiff Robert L. Ross, Sr . ("Plaintiff") filed the instant lawsuit against WCW_ In his Complaint,

Plaintiff alleged that WCW : (1) paid him less than similarly situated white wrestlers, (2) failed to promote him to heavyweight champion, (3) denied him promotion and/or endorsement opportunities with other companies, and (4) "terminated" him on the basis of his race (black), in violation of Title VII of the

Civil Rights Act of 1964 ("Title VII"), 42 U.S .C . §2000(e) . WCW timely filed an Answer to Plaintiff's Complaint, denying its

WCW 102106 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 101 of 296

material allegations and asserting several affirmative defenses .

The disccv°-ry rcriod as estauiisned by this Court's local rules

has ended, and pursuant to this court's Order, dated December 31,

1993, WCW now moves for summary judgment on Plaintiff's claims on

the following grounds :

1 . The undisputed facts establish that Plaintiff was never an employee of WCW, but was an independent contractor as a matter of law, and therefore, this Court lacks subject matter jurisdiction over Plaintiff's claim ;

2 . The undisputed facts establish that Plaintiff cannot present a prima acie case of race discrimination as a matter of law ; and

3 . The undisputed facts establish that at all times WCW acted with respect to Plaintiff on the basis of legitimate, non-discriminatory reasons unrelated to Plaintiff's race .

Because the undisputed facts show that Plaintiff cannot meet the burden of proving his claims at trial, Wcw's Motion for Summary

Ju3g-inci+t should be granted and Plaintiff's Complaint should be dismissed .

IT . STATEMENT OF FACTS

A. Plaintiff's Background

Plaintiff graduated from North Cobb High School in 19 7 7, and

immediately entered the Army . (Deposition of Plaintiff Robert L .

Ross, Jr . (hereinafter "Ross Dep ."), pp . 9-l0)) . While in the

Army, Plaintiff rose to the rank of Platoon Sergeant in the Army

Rangers, and was honorably discharged in 1986 . (Ross Dep ., p .

10) Prior to his discharge, Plaintiff determined that he wanted to pursue a career as a professional wrestler .'

Plaintiff had previously wrestled in high school and in the Army . (Ross . Dep ., p . 21)

WCW 102107 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 102 of 296

In pursuit of this goal, Plaintiff took an extended vacation

from the Army in October 1985 and attended well-known wrestler

Thunderbolt Patterson's wrestling school in Atlanta, Georgia .

(Ross Dep ., pp . 20-24) Thunderbolt Patterson trained Plaintiff approximately two to three (2-3) hours per night, three to four

(3-4) times per week for a period of three months . (Ross Dep-, p. 20) For his training, Plaintiff paid Thunderbolt Patterson the sum of twelve hundred dollars ($1200) from his savings .

Upon his discharge from the Army, Plaintiff adopted the ring name "Ranger Ross," and the "gimmick" of portraying himself as a war hero . (Ross Dep ., p . 19) Plaintiff purchased a costume and equipment with his own money, and began wrestling for Deep South

Championship Wrestling ("DSCW") . (Ross Dep ., pp . 12-16)

Plaintiff testified that his relationship with DSCW was typical of the relationship between wrestlers and wrestling companies throughout the industry . Plaintiff wrestled three or four times weekly, under the terms of an oral independent contractor agreement, and was subject to minimal supervision . (Ross Dep ., pp . 13-16)

Plaintiff's boss at DSC47, Jody Hamilton, would contact

Plaintiff, provide him with the schedule of events and their locations, instruct Plaintiff as to the outcome of his matches, and pay him the agreed upon amount . (Ross Dep ., pp . 11-16)

Although the wrestlers were told where, when and whom to wrestle, as well as who vas to win the match, the details of each match were left to Plaintiff and his opponent During the entire year

WCW 102108 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 103 of 296

and a half that Plaintiff wrestled for DSCW, DSCW did not

withhold social security tax or payroll tax from Plaintiff's pay,

and DSCW did not provide Plaintiff with any vacation, pension,

insurance or medical benefits . (Ross yep ., pp . 14-16)

While wrestling for DSCW, Plaintiff also held a full-time

position (40 hours per week) as a press operator at a local

textile company, Coates s Clarke, at a salary of $250 .00 per

week . (Ross Dep ., p . 16) Plaintiff testified that nothing in

his agreement with DSCW precluded him from holding other jobs with other employers . (Ross Dep ., p . 16)

By January 1988, it vas apparent to Plaintiff that DSCW was

not drawing large enough crowds and vas in financial trouble . So

Plaintiff went to work for Southern Championship Wrestling

("SCW") under an oral agreement almost identical to his deal with

DSCW .Z (Ross Dep ., p . 18) Plaintiff wrestled for SCW approximately three days per week, was paid by the match, and also was paid a percentage of the gate . (Ross Dep ., pp . 18-19)

Plaintiff's pay averaged between two hundred to three hundred dollars ($200-$300) per week . Plaintiff continued to wrestle under the name "Ranger Ross ." Like DSCW, SCW did not reimburse

Plaintiff for the cost of his costumes or equipment, did not withhold social security or payroll taxes, and did not provide

Plaintiff with any vacation, pension, insurance, or medical benefits . Plaintiff wrestled for SCW for approximately one year,

DSCW went bankrupt shortly after Plaintiff left in 1988 . (Ross Dep ., p. 17)

WCW 102109 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 104 of 296

( !

and continued to hold other full time jobs the entire time .

(Ross Dep ., pp . 24, 15)

Around 1987, or 1988, Plaintiff approached The National

Wrestling Alliance's ("NWA") owner, David Crockett, about

wrestling for NHA . While crockett declined Plaintiff's request,

Crockett introduced Plaintiff to Nelson Royal, who wrestled for

the NWA and owned a wrestling school in Mooresville, North

Carolina . (Ross Dep_, p . 25) At the suggestion of Crockett,

Plaintiff went to Royal's wrestling school to be evaluated by

Nelson Royal . Royal later informed Crockett that Plaintiff was qualified to wrestle for the NWA . (Ross Dep ., pp . 2s-28)

H. Plaintiff's First Stint With Wc

In January 1989, Plaintiff left SCE and began wrestling for

WCW, which had bought out the NWA in 1988 . (Ross Dep ., p . 29)

WCW, like other wrestling companies, stages, promotes and televises professional wrestling matches . Plaintiff wrestled for

WCW as "Ranger Ross," and retained his original gimmick . (Ross

Dep ., pp . 19, 32-J3) He wrestled approximately fifteen to twenty days per month under the terms of an oral independent contractor agreement and was paid $1000 .00 per week . (Ross Dep ., pp . 37,

39, 42) Sometimes Plaintiff received a percentage of the gate frog the wrestling events in which he participated . (Ross Dep ., p. 45) Plaintiff wrestled for a total of seventeen months before he vas released by WCW in May of 1990 . Plaintiff was released due to budgetary constraints . (Ross Dep ., p . 46)

WCW 102110 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 105 of 296

C . May 1990 and Subsequent Events .

After leaving WCW, in may of 1990 ; Plaintiff w

and wrestled for one month . (Ross Dep ., pp . 58-60) In July

1990, upon his return from Japan, Plaintiff began wrestling Ear

North Atlantic Championship Wrestling ("NACW") . (Ross Dep ., p .

61) Plaintiff wrestled for NACW under the terms of an oral

independent contractor agreement, three or four nights per week, and was paid $100 per night . (Ross Dep ., pp . 50, 61-62) As is standard practice with wrestling companies, NACW did not withhold social security tax, federal or state payroll tax from these payments, and provided Plaintiff with no pension, medical, insurance or vacation benefits . (Ross Dep ., p . 62) Further,

Plaintiff, who was still wrestling as "Ranger Ross," paid for all of his costumes and equipment . (Ross Dep ., p . 46)

D. Plaintiff's second stint with We-w-

In January of 1991, WCW President Jim Herd telephoned

Plaintiff and asked him if he wanted to wrestle Ear WCW again .

Plaintiff accepted immediately and met with Jim Herd to negotiate a contract . (Ross Dep ., pp . 65, 72) Herd and Plaintiff agreed on a six month contract under which Plaintiff would earn $1500 .00 per week for his services . (Ross Dep ., pp . 68, 72) Plaintiff testified that he agreed to these terms and signed a °WCW

Freelance Wrestler/Independent Contractor Agreement" (the

"Agreement^) on January 9, 1991 . (Ross Dep ., pp . 70-71 ;

Defendant's Exhibit 2 (attached hereto as Exhibit "A"))

WCW 102111 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 106 of 296

The Agreement itself is in plain language and is simple to

read . As Plaintiff testified, he read the Agreement prior to

signing it and understood it in its entirety . (Ross Dep ., pp .

71-72) Paragraph 2 of the Agreement states :

I understand and agree that I perform such services as an independent contractor and not as an employee of WCW . I agree that I shall be fully responsible for taxation on the amounts paid to me by WCW as compensation for my services and that WCW shall bear no responsibilities for such taxation . I agree that I am not entitled to the benefits provided by WCW to its employees . I understand that WCW makes no commitment to use my services and makes no guarantee of any number of events or amount of compensation .

( See Exhibit " A" hereto) As this language makes clear, Plaintiff was not an employee of WCW, but was an independent contractor .

In fact, Plaintiff testified that he understood that he vas not an employee of WCF1 . (Ross Dep ., pp . 72-73)

During his service- with Wr47 from january, through

1991, WCW communicated with Plaintiff primarily through booking sheets which contained pertinent scheduling information . (Ross

Dep ., pp . 79-80) The booking sheets sent to Plaintiff specified which wrestlers would wrestle whom, and the location and dates of the watches . The booking sheets announced matches anywhere from two weeks to thirty days in advance . (Ross Dep ., pp . 79-81)

Plaintiff and the other wC4i wrestlers were responsible for buying plane tickets and getting to the matches . Once at the venue, the wrestlers would go to the dressing room, get dressed in their costumes, and wait for further instructions . (Ross Dep ., pp .

81-82)

WCW 102112 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 107 of 296

Then, a representative of WCN, usually the road agent, or

sometimes the referee, would make sure that all wrestlers

scheduled to wrestle were present, specify which wrestler vas

supposed to win or lose the various matches, and tell the

wrestlers how to finish the match . (Ross Dep ., p . 82) The

wrestlers themselves were free to choreograph the remainder of

the match up to the finish . Plaintiff testified that beyond

specifying who was to win or lose, and ensuring that the

wrestlers were ready to wrestle, WCW did not supervise him

further . (Ross Dep ., pp . 83-84)

During the January 1991-July 1991 time period, Plaintiff's primary contact at WCW was Dusty Rhodes . Mr . Rhodes was responsible for: (a) arranging or booking WCWIs professional wrestling matches at various venues throughout the country,

'bj uetecmining which wrestlers would wrestle at the events

(including which wrestlers would wrestle against each other),

(d) evaluating and recruiting talent, and (e) deciding which wrestler s) would progress or 6e "pushed" to the rank of heavyweight champion . (Affidavit of Virgil Runnels, a/k/a Dusty

Rhodes (hereinafter "Rhodes Aff ."), 1 3)

During the January 1991 through July 1991 time period, it became apparent to WCW that Plaintiff lacked the talent, skills and, most importantly, the audience appeal necessary to be considered to be WCW's heavyweight champion . (Rhodes Aff ., q 6)

Professional wrestlers must be capable of whipping the crowd into

WCW 102113 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 108 of 296

a frenzy . Crowds who are vocal and involved in a match enjoy

Liieaseives and return to other wrestling events, which ensures the continued financial viability of companies like WCW- (Rhodes

AEf ., = 6) According to Dusty Rhodes, Plaintiff was unable to generate sufficient excitement and interest among the crowd .

(Rhodes Aff ., 1 6) His performances simply were not sufficiently entertaining . (Rhodes Aff ., = 6)

While Plaintiff's gimmick of portraying himself as war hero

"Ranger Ross generated some interest among the crowd

(particularly during 1991's operation Desert Storm), Plaintiff failed to sustain and build upon that interest . (Rhodes Aff ., i 6) In short, Plaintiff vas one of the hundreds of professional wrestlers who could not sell tickets and could not draw crowds .

(Rhodes Aff ., 1 6) He simply did not stand out . Accordingly,

Plaintiff was not qualified to be named WCW's heavyweight champion . (Rhodes Aff ., 9 6) Conversely, Rick Flair (white),

Ron Simmons (black), and Lex Luqar (white), all of whom were heavyweight champions for WCW, each had an appealing gimmick and the charisma and audience appeal to generate massive and unmistakable reactions from the audience . (Rhodes AEf ., 1 6)

Plaintiff testified that Rhodes approached him in early 1991 and enlisted Plaintiff's help in pushing Ron Simmons, a black wrestler, to the position of WCW's heavyweight champion . (Ross

Dep ., pp . 77-79, 93) Specifically, Plaintiff testified that

WCW used the services of approximately 334 male wrestlers in 1991 . (Holman Aff ., y 5)

WCW 102114 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 109 of 296

Rhodes hoped to make Simmons the heavyweight champion, and

further that Rhodes enlisted Plaintiff's assistance by asking

Plaintiff to serve as Simmons' "trainer ." (Ross Dep ., pp . 77-79)

The idea was to highlight Plaintiff's military background and to

portray Plaintiff as putting Simmons through military style

training in preparation for an "assault" on the heavyweight

title . (Ross Dep ., pp . 77-79) It is undisputed that Rhodes

initiated Simmons' push to heavyweight champion, and asked for

Plaintiff's help in that process, before the expiration of

Plaintiff's Agreement in July of 1991 . (Ross Dep ., pp . 77-79)

Further, it is undisputed that Ron Simmons, a black male,

thereafter became WCW's heavyweight champion . (Ross Dep ., pp .

122-12])

In mid-1991, due to the declining popularity of professional wrestling, WCW was forced to cut its budget . (Herd Aff ., y 6)

As part of the measures taken to cut the budget, WCW did not renew the independent contractor agreements of several wrestlers,

including Plaintiff's . (Herd AEf ., q 6) It is, however, undisputed that Plaintiff was not terminated or fired 6y WCW .

Rather, his Agreement simply was not renewed . (Ross Dep ., p . 73)

Plaintiff vas one of fourteen professional wrestlers whose agreements were not renewed by WCW during the summer of 1991 .

(Rhodes AEf ., = 8 ; Affidavit of WCW " s James Herd (hereinafter

"Herd Aff .°) ~ 6) Significantly, Plaintiff vas the only black among the fourteen wrestlers released by WCW in the summer of

1991 . (Rhodes Aff ., i 8) Moreover, Plaintiff earned more than

WCW 102115 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 110 of 296

Iff A~ E ten of the fourteen wrestlers that were released with him in the summer of 1991 . Pertinent data on the fourteen (14) wrestlers released by WCW in the Summer of 1991 (i .e . their names, their

1991 earnings, the length of time they were active, and their race) is as follows :

NAME 1991 EARNINGS/TIRE ACTIVE RACE Ranger Ross $36,250 .00 (6 MOS .) Black Rip Morgan $29,622 .00 (7 .5 MOS .) White Randy Colley $29,925 .00 (6 .0 MOS .) White Robert Gibson $00 .00 (inactive) white George Gray f $74,000 .00 (8 .5 MOS .) White Billy Jack Haynes $16,500 .00 (4 .0 MOS .) White Oliver Humperdink $00 .00 (inactive) White Black Bart $26,350 .00 (7 .5 MOS .) White Dutch Mantel + $58,240 .00 (9 .5 lSOS .) White Dick Murdoch $16,750 .00 (4 .5 MOS .) White Jack Victory $32,200 .00 (6 .0 HOS .) White Dick Slater $16,750 .00 (4 .0 MOS .) White Sam Houston $19,150 .00 (5 .0 HOS .) White Danny Spivey $57,000 .00 (5 .5 MOS .) White

(Rhodes Aff ., = 8 ; Holman Aff ., 1 9)

Upon expiration of Plaintiff's Agreement, Plaintiff was informed that his Agreement would not be renewed . (Ross Oep ., pp . 92-9J) After Plaintiff's release, however, WCW contacted him once to ask him to wrestle at a special event . (Ross Dep ., p . 111) Plaintiff agreed to do so and in fact wrestled at a WCW event in August 1991 . (Ross Dep ., p . 111) WCW paid Plaintiff a flat fee for that one match . (Ross Dep ., p . 111) Plaintiff later filed a charge of discrimination with the Equal Employment

Opportunity Commission ("EEOC") . After receipt from the EEOC of

The three wrestlers who earned more than Plaintiff's $1500 .00 weekly salary are marked with an asterisk (*) .

WCW 102116 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 111 of 296

his Right-to-Sue Notice, Plaintiff filed the instant action on

June 1, 1989 .

E . Events Since Plaintiff's Lawsuit was filed .

Plaintiff's discovery efforts in this case highlight the

fact that (a) Plaintiff cannot prove the requisite elements of

his claims and (b) that Plaintiff intends to distort the facts in

an attempt to confuse and mislead the court . Of the thousands of

documents that WCW made available for Plaintiff's inspection,

Plaintiff chose to copy only a handful of documents . Instead of

copying all of the documents relating to payments made by WCW to

hundreds of WCW wrestlers, Plaintiff copied only the largest

paycheck stubs of a handful of top whites WCW wrestlers from

selected pay periods . Undoubtedly, plaintiff will attempt to

distort this limited information and make incorrect

extrapolations about no.;,. much certain FiCW wrestlers were paid .

Because Plaintiff did not look at all of the documents and

because Plaintiff did not analyze all of the pertinent data,

Plaintiff has no idea of how much other WCW wrestlers were paid,

Plaintiff ignored the files of Ron Simmons and Teddy Long, black wrestlers who rank among the highest paid at WCw .

WCW 102117 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 112 of 296

and Plaintiff admitted as much during his deposition .' (Ross

^vep ., pp . i17-118)

Plaintiff took no depositions during discovery in the case .

Moreover, throughout his deposition Plaintiff conceded that on

every point crucial to his case, his claims rest on nothing but

his opinions and conjectures . Plaintiff admitted that he does

not know (a) who at 47CW made the decisions about which he

complains, or (b) what factors the individuals who did make the

decisions relied upon . (Ross Dep_, pp . 53-54, 56-58, 97, 100,

117-121, 123-126, 128, 112-137, 139) In such circumstances, WCW

is entitled to summary judgment because Plaintiff can produce no evidence whatsoever to support his claims beyond baseless accusations that fly in the face of the voluminous, uncebutted

facts .

III . ARGUMENT AND CITATION OF AUTHORITY

In his Complaint, Plaintiff alleges that WCW : (1) paid him

less than similarly situated white wrestlers, (2) Failed to promote him to heavyweight champion, (3) denied him promotion and/or endorsement opportunities, and (4) "terminated" him on the basis of his race in violation of Title VII of the Civil Rights

Amazingly, during his deposition Plaintiff requested the 1099s that shoe each independent contractors annual earnings, but as of the date of this filing, Plaintiff has not come to Defendant's counsel's office to inspect them . The 1099s, and other records produced, conclusively establish that there were approximately two hundred and seventy-eight (278) WCW wrestlers, the vast majority of whom were white, who in 1991 were paid less than Plaintiff . (Holman Aff ., 1 5-6)

WCW 102118 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 113 of 296

It W.

Act of 1964 ("Title VII"), 42 U .S .C . §2000(e)_ Plaintiff's

claims are meritless for several reasons .

First, Plaintiff readily admitted during his deposition that

he vas never an employee of WCw . Rather, at all times relevant

to this action, Plaintiff was an independent contractor, who

wrestled under the terms and conditions of a written agreement

that clearly and unambiguously provided that he was an

independent contractor . As an independent contractor, Plaintiff

is not entitled to the protections of Title VII of the Civil

Rights Act of 1964 . Accordingly, this Court lacks subject matter

jurisdiction over Plaintiff's claims, and Plaintiff's Complaint

should be dismissed .

Second, Plaintiff cannot establish a prima facie case of

discrimination . Plaintiff cannot shoe : (1) that he was the

victim- Q.f ... .^.`f adverse employment action whatsoever, (2) that he

was qualified to be "pushed" to the rank of heavyweight champion,

or, alternatively, that he was even satisfying the legitimate

expectations of WCW, or (7) that he was replaced, much less 6y

someone outside the protected classification .

Third, assuming arguendo that Plaintiff can establish a

ima facie case of discrimination, WCw has articulated nondiscriminatory, legitimate business reasons for each action about which Plaintiff complains . Plaintiff has produced no evidence whatsoever to meet his burden of rebutting WCwIs nondiscriminatory, legitimate business reasons for its actions . For

WCW 102119 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 114 of 296

these reasons, Plaintiff's claims all fail and are subject to

summary judgment .

a . Standard of Review .

Under Rule 56(c) of the Federal Rules of Civil Procedure,

"[s]ummary judgment is appropriate where there is no genuine

issue of material fact ." Earlev v . Champion International

Corporation , 907 F .2d 1077, 1080 (11th Cir . 1990) ; Fed . R. Civ .

P . 56(c) . As held by the U .S . Supreme Court : "Summary judgment

procedure is properly regarded not a5 a disfavored procedural

shortcut, but rather as an integral part of the federal rules as

a whole, which are designed 'to secure the just, speedy and

inexpensive determination of every action ."' Celotex Corms . v .

Catrett , 477 U .S . 317, 327, 106 S .Ct . 2548, 2555 (1986) .

Consequently :

Rule 56 must hp construed with due regard not only for the rights of persons of asserting claims and defenses . . . but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the rule, prior to trial, that the claims and defenses have no factual basis-

Celotex Corgi, 477 U.S . at 327, 106 S .Ct . at 2555 ; Barnes v .

Southwest Forest Industries . Inc . , 814 F_2d 607, 609 (11th Cir .

1987) . Also, "a court must bear in mind the actual quantum and quality of proof necessary to support liability" in a given case .

Barnes , 814 F .2d at 609 (quoting Anderson v . Liberty Lobby . Inc . ,

477 U.S . 242, 106 S .Ct . 2505, 251 (1986)) . "The mere existence of a scintilla of evidence in support of the Plaintiff's position

wcw 102120 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 115 of 296

will be insufficient ; there must be evidence on which the [trier of fact] could reasonably find for the Plaintiff . . . If the evidence is merely colorable or is not significantly prohibitive summary judgment may be granted ." Earlev , 907 F .2d at 1080

(quoting Anderson , 477 U .S . at 249-250, 106 S . Ct . at 2511)

(emphasis in Earlev ) . While, under Rule 56, a court considering a motion for summary judgment must consider all the evidence in the light most favorable for the non-moving party," Rollins v .

Techsouth . Inc . , 833 F .2d 1525, 1528 (11th Cir . 1987) ; N[a] trial court is not required to resolve all doubts in such a manner ."

Ea e , 907 F .2d at 1080 (quoting Barnes , 814 F .2d at 609)

(emphasis in original) .

In an employment discrimination case, summary judgment is appropriate where "the Plaintiff fails to raise any issue of fact indicative of . . . discriminatory conduct by the Defendant ."

Beard v . Annis , 770 F_2d 741, 743-744 (11th Cir . 1984) . Where there is a "complete failure of proof concerning an essential element of the non-moving parties case . . . summary judgment is appropriate ." Celotex Corp . , 477 U.S . at 327, 106 S .ct . at 2552-

53 .

H. Plaintiff was 11n independent Contractor And As Such Does Not Fall Within The Ambit Of Title VII's Protections .

Section 703(a) of Title VII prohibits discrimination against

"any individual" with respect to "compensation, terms, conditions, or privileges of employment ." This Court has held that Title VII does not apply to independent contractor relationships, as the requisite employment setting is lacking .

WCW 102121 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 116 of 296

Ar A~

See Mathis v. Standard Brands Chemical Industries . Inc , 10 FEP

295 (N .D .Ga . 1975)(Title VII does not extend to cover attempts to enter into independent contract relationships) . In the instant case, Plaintiff admits that he vas never an employee of WCw .

(Ross Dep ., pp . 72-73) Thus, the requisite employment setting is wholly absent . Moreover, the plain language of Plaintiff's

Agreement states that Plaintiff is an independent contractor, not an employee . (See Exhibit "A" hereto) In such circumstances,

Plaintiff plainly does not fall within the ambit of Title VII's protection .

In this circuit, "general common law concepts" are used to determine whether an individual is an independent contractor or employee . Cobb v . Sun Papers . Inc . , 673 F .2d 377 (1982) . In fact, in the Cobb case the Eleventh Circuit Court of Appeals adopted an eleven-part test which found its origins in general principles of the law of agency . Cobb, 637 F .2d at 340-741 . The eleven factors enunciated in Cobb are as follows : (1) the intention of the parties, (2) whether the worker accumulates retirement benefits, (7) whether the "employer" pays social security taxes, (4) whether annual leave is afforded, (5) the length of time during which the individual has worked, (6) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done 6y a specialist without supervision, (7) the skill required in the particular occupation, (8) the manner in which the work relationship is terminated ; i .e ., by one or both parties, with or

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It qt without notice and explanation, (9) Whether the "employer" or the

individual in a_uestion furnicnas the o .q.-~~. ; ..."" ., . .~ used and l`,ilC EI1dl:C of work, (LO) whether the work is an integral part of the

business of the "employer", and (11) the method of payment, by time or by the job . Id . at 340_ While Cobb advocates an analysis using the above listed factors, the Court cautioned that

"no one factor is determinative_"' Id . at 340 (citing, Spirides v. Reinhardt , 613 F .2d 826 (D .C . Cir . 1979)) .

In the instant case, no fewer than ten of the eleven factors point to the inescapable conclusion that Plaintiff was an independent contractor, not an employee of WCW . Paragraph 2 of

Plaintiff's Agreement itself addresses the first four elements of the test . That language provides :

Z understand and agree that I perform such services as an independent contractor and not as a¢ employee of WCf/_ 7 agree_~___ that T sh.. a ll b^ fully" responsible Ear taxation on the amounts paid to me by WCW as compensation for my services and that wCw shall bear no responsibilities for such taxation . I agree that I am not entitled to the benefits provided by WCW to its employees . I understand that WCW makes no commitment to use my services and makes no guarantee of any number of events or amount of compensation .

(Exhibit "A" hereto)(emphasis added) Plaintiff bargained for, read, and signed the Agreement fully knowing and understanding that it contained the above-quoted language . (Ross Oep ., pp . 72-

75) More importantly, Plaintiff testified that he understood the

Indeed, review of Cobb reveals that the Court ignored several of the above-listed factors, and affirmed the district court's determination that the appellant was an independent contractor because most of the evidence supported the lover court's reasoning .

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entire agreement . (Ross Dep ., pp . 72-78) In fact, Plaintiff

testified that he was well aware that he was not an employee of

HCW . (Ross Dep ., pp . 72-73) Thus, the intention of the parties

was clear and unmistakable : Plaintiff was to be an independent

contractor and not an employee .

The second factor, whether the individual accumulates

retirement benefits, is also addressed in Paragraph 2, which

states, "I agree that I am not entitled to the benefits provided

by WCW Co its employees ." (Exhibit "A" hereto) Plaintiff

accumulated no benefits whatsoever beyond the $1500 weekly

compensation required under the Agreement . (Ross Dep ., pp . 77-

75) Plaintiff was provided no retirement, medical, or insurance

benefits- (Ross Dep ., pp . 77-75) Moreover, Plaintiff admitted

that WCW paid no social security or payroll taxes on his behalf .

(Ross Dep ., p . 73)

The next factor, whether annual leave is provided, also

leads to the conclusion that Plaintiff was not an employee .

Again, Paragraph 2 states that Plaintiff would receive no

benefits usually accorded WCW employees, and Plaintiff testified

that WCW provided him with no annual leave . (Ross Dep ., p . 74 ;

see also , Exhibit "A" hereto) The next element of the test

pertains to the length of time during which the individual worked . Plaintiff's set six month tenure is inconsistent with an

employment relationship . An employment relationship is not

usually of a set duration, but is continuous .

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Next, Plaintiff's testimony establishes that the level of

supervision that he and other WCW wrestlers were subjected to was

negligible at best . Plaintiff was instructed where to wrestle,

whom to wrestle against, and the finish of the match . (Ross

Dep ., pp . 81, 83) The match itself, up to the finish, was .

choreographed by the wrestlers themselves . (Ross Dep ., pp . 76,

83-84) Such a minimal level of supervisory involvement is not

consistent with an employment relationship . Instead, as in the

typical independent contractor arrangement, WCW specified little

else but what the finished product should look like, and left the

details up to the wrestlers . Further, Plaintiff admitted that

WCW did nothing to change his gimmick .' Plaintiff chose his own

costume, and performed his own techniques while in the ring,

without direct supervision .

The next element requires analysis of the level of skill

involved in the endeavor . Professional wrestlers are

specialists . The wrestling techniques and moves Plaintiff

employed were developed through years of training . Plaintiff wrestled throughout high school, continued to wrestle competitively while in the army, and planned to wrestle in the

1980 Olympics, Gut the U .S . boycott prevented his participation .

(Ross Dep ., pp . 21, 21-24) Moreover, Plaintiff attended two professional wrestling schools to receive the necessary training .

(Ross Dep ., pp . 21, 21-24) In fact, David Crockett of the NWA,

WCW only required a costume change if there was a conflict between two costumes, such as two wrestlers with the same color shorts . (Ross yep ., pp . 84-85)

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WCW " s predecessor, would not hire Plaintiff until he attended

Nelson Royal's wrestling school in Mooresville, North Carolina, where his skills could be evaluated . There can be no question,

then, that Plaintiff, was a highly trained specialist, which supports the conclusion that Plaintiff was an independent contractor .

The next factor, the manner in which the work relationship terminated, also weighs heavily in favor of the conclusion that the Plaintiff vas an independent contractor . Although Plaintiff alleged that he vas "terminated," Plaintiff readily admitted during his deposition that he vas not terminated . (Ross Dep ., pp . 92-93) Instead, the parties' relationship in this case just expired when Plaintiff's Agreement expired . Such an arrangement is wholly inconsistent with a finding that Plaintiff was an employee . Additionally, Plaintiff knew when he signed the

Agreement that his Agreement expired in six months . Thus,

Plaintiff had notice at the very start of his contract that he would be subject to a release in July 1991 . Such notice is consistent with an independent contractor arrangement, not an employment relationship .

Although WCW provided "the place of work," this factor still supports the conclusion that Plaintiff was not an employee . WCW only provided the place of work to the extent that it hooked the particular arena where the matches took place . The nature of the business itself dictated that WCW, of necessity, provided the place of work . Also, Plaintiff testified that during his entire

WCW 102126 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 121 of 296

t !

professional wrestling career (including his time with WCW), he

provided his own costume and equipment ." (Ross Dep ., pp . 18, BS)

Without exception, Plaintiff paid for his costumes from his own

money, and was not reimbursed . (Ross Dep ., p . 85)

Next, the work in question was not an integral part of the

business of the employer . While WCW staged, promoted, and

televised professional wrestling matches, Plaintiff's involvement

in those matches was not essential to that business . Plaintiff

was not one of the top wrestlers, and was relatively funqible .'°

Thus, application of the Cobb test to the facts in this case

leads to the inescapable conclusion that Plaintiff was an

independent contractor . As such he is not entitled to Title

VII's protections . Thus, Plaintiff's Complaint should be

dismissed, as this Court lacks subject matter jurisdiction aver

Plaintiff's claims .

Plaintiff testified that on one occasion, WCw provided him with a rape from which he rappelled from the ceiling of an arena . (Ross Dep ., p. 46)

° While not a factor listed in Cobb, some weight must be given to the practice in the wrestling business . As stated by Dusty Rhodes, who has over twenty (20) years of experience as a professional wrestler, "[i]t is, and always has been, standard industry-vide practice for wrestling promotion companies (like WCW) to retain the services of all professional wrestlers as independent contractors, and not employees ." (Rhodes AEf ., SZ il-1J) Moreover, Plaintiff admitted that he vas treated as an independent contractor in all of his prior wrestling work . (Ross Dep ., pp . 13-16, 18-24, 50, and 61-62)

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C. Plaintiff's Claims Pertaining To His Work For wCq From January 1989 through May 1990 Are Untimely .

Plaintiff testified in his deposition that WCW discriminated against him during his first stint at WCW (from January, 1989

through May, 1990) . (Ross Dep ., pp . 49-50) But Plaintiff admitted that after he was released by WCW in Hay, 1990, he did

hot file a charge of discrimination with the Equal employment opportunity Commission (^EEOC") . (Ross Dep ., p . 49)

Under Title VII, an individual wishing to bring suit must satisfy several administrative requirements . See 42 U.S .C .

$2000e-5(b)-(k) ; Tolbert v . U .S . , 916 F .2d 245, 247 (5th Cir .

1990) ; Law v. Hercules . Inc . , 717 F .2d 691, 692-93 (11th Cir .

1983) . One of those requirements is that any "charge under

[Title VII] must be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred . . . ." 42 U .S .C . §2000e-5(e) . Thus, by its plain language, Title VII requires any prospective plaintiff to notify the EEOC (through the filing a charge of discrimination) of an alleged discriminatory act no later than one hundred and eighty

(180) days after the Last discriminatory act took place . Id .

In Plaintiff's case, the last discriminatory act during his first stint with WCW could not have occurred later than

Plaintiff's May, 1990 release . Accordingly, Plaintiff needed to file an EEOC charge by no later than November 1, 1990 (assuming a

Kay 30, 1990 release date) in order to make a timely claim under

Title VII . Plaintiff testified, however, that he never filed a charge of discrimination pertaining to his work for WCw during

WCW 102128 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 123 of 296

Ar A' qt %-

the January 1989 through May 1990 time period . (Ross Dep ., pp . 50) Therefore, any and all allegations of discrimination regarding Plaintiff's work for WCW during the January 1989 through May 1990 time period are untimely and should not be considered by the Court . United Airlines, Inc . v . Evans , 431

U .S . 533, 97 S .Ct ., 1855 (1977) .

D. Plaintiff's Claims Pertaining To His Work For WCW From January 15 . 1991 Through July 14, 1991 Ate Subject To Summary Judgment .

As noted in Section III(H) of this Brief, as an independent contractor, Plaintiff does not even fall within the ambit of

Title VII's protections . Moreover, even if this court were to find that Plaintiff might fall within the ambit of Title VII,

Plaintiff's claims still are subject to summary judgment for two reasons . First, Plaintiff has failed to establish a prima facie case of race discrimination . Second, even if he could establish a prima facie case, Plaintiff has not rebutted (and cannot rebut)

WCW's articulated legitimate, non-discriminatory reasons for its actions involving Plaintiff . For these reasons, Plaintiff's claims are subject to summary judgment .

1 . Plaintiff's Burden of Proof

In a Title VII discrimination case, Plaintiff bears the fundamental burden of proving that an adverse employment decision taken against him/her was based upon an unlawful factor . In this action, Plaintiff is alleging disparate treatment under Title

VII . Accordingly, Plaintiff is required to prove that VCA acted towards him with discriminatory intent. International

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Brotherhood of Teamsters v . United States , 431 U .S . ]24, 355 n .15, 97 S . Ct . 1843, 1854 n .15 (1977) ; Pace, 701 F . 2d at 1387 .

Absent direct evidence, the establishment of discriminatory motive is governed by the burden of proof and order of proof requirements set forth in McDonnell-Douglas Corp . v . Green , 411

U.S . 792, 802-804, 93 S . Ct . 1817, 1824 (1973) . Archambault v .

United computing Systems . Inc . , 786 F .2d 1507, 1512 (11th Cir .

1986) .

Under McDonnell-Douglas , Plaintiff first has the burden of establishing a prima facie case of illegal discrimination .

McDonnell-Douglas , 411 U.S . at 802, 93 S .Ct . at 1824 . Second, if

Plaintiff succeeds in establishing the prima facie case, the burden shifts to the Defendant to "articulate some legitimate, non-discriminatory reason" for the adverse employment action . If the Defendant carries this burden, the Plaintiff must prove by a preponderance of the evidence that the legitimate reason offered by the Defendant was merely a pretext for discrimination . Id . at

804 ; 93 S .Ct . at 1825 ; Perryman v . Johnson Products Co . , 698 F .2d

1138, 1142 (11th Cir . 1983) . However, the Defendant's burden of rebuttal is merely one of production, not proof . Lee v . Russell

County Board of Education , 684 F .2d 769, 773 (11th Cir . 1982) .

At all times, the "ultimate burden of persuading the trier of fact that defendant intentionally discriminated . . . remains with the Plaintiff ." Texas Department of Community Affairs v.

Burdine , 450 U .S . 248, 253, 101 S .Ct . 1089, 109 (1981) .

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In evaluating whether a Plaintiff has satisfied the initial

burden of establishing a prima facie case, the central inquiry is

whether the circumstantial evidence presented is sufficient to

create an inference, i .e ., a rebuttable presumption, that the

employer's personnel decision was based upon an illegal factor .

Furnco Construction Corp . v. Waters , 438 U .S . 567, 577, 98 S .Ct_

2943, 2949 (1978) .

In light of these standards, Plaintiff's own deposition testimony is fatal to his Title VII claim . During his deposition, Plaintiff admitted that his claims of discrimination rest on nothing other than his opinion . (Ross Dep ., pp . 53-54,

56-58, 97, 100, 117-121, 123-128, 132-137, 139) Plaintiff repeatedly admitted that he has absolutely no idea of who made any of the decisions of which he complains, the reasons they made them, or the factors they considered . (Ross Dep ., pp . 57-54, 56-

58, 97, 100, 117-121, 123-124, 126, 128, 132-134, 136-137, 139)

Therefore, Plaintiff has no evidence to carry his burden . The law is clear that when an employment discrimination Plaintiff does no more than state his conclusion that alleged actions were discriminatory, a p rima f acie case of discrimination is not established and summary judgment must be granted as a matter of law . Locke v . Commercial Union Insurance Co ., etc . , 676 F .2d

205, 206 (6th Cir . 1982) ; Mason v. Continental Illinois National

Bank , 704 F .2d 361, 367 (7th Cir . 1983) ; Patterson v . General

Motors Corp ., 631 F .2d 476, 482 {7th Cir . 1980}, cert . den ., 451

U.S . 914, 101 S . Ct . 1988 (1988) . In this case, because

WCW 102131 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 126 of 296

Plaintiff has come forward with no evidence of any

discrimination, Plaintiff's claims are subject to summary

judgment .

2 . Plaintiff Has Failed To Establish A Prima Facie Case Of Race Discrimination .

In a race discrimination case, a Plaintiff can establish a

prima facie case in one of three ways ; 1) through direct evidence

of discriminatory intent ; 2) by demonstrating a pattern of

discrimination through the introduction of statistics ; or 3) by

satisfying the elements of McDonnell-Douglas . Ear ly , 907 F .2d. at

1081 .

Plaintiff testified during his deposition that no one at wCW

made comments to him that were directly attributable to his race .

(Ross Dep ., p . 148-150) Thus, it is apparent that Plaintiff

cannot prove his prima facie case through direct. evidence . See

Early , 907 F .2d at 1081-82 . Likewise, Plaintiff has not

attempted to prove his P rima facie case through the use of

statistics . Indeed, as detailed hereinbelow, the statistical

evidence in this case refutes each of Plaintiff's assertions .

Accordingly, Plaintiff must meet the standard enunciated in

McDonnell Douglas to establish a anima facie case .

To establish a prima facie case under McDonnell-Douglas ,

Plaintiff must show that he vas : (1) a member of the protected

classification, (2) was qualified for the promotion, or at least

was performing up to the legitimate expectations of his employer,

and (3) vas subjected to an adverse employment action . Flanagan v. McKesson Corp . , 48 F .E .P . Cases 343, 344 (N .D . Ga . 1988) ;

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Coldstein v. Manhattan Industries, Inc . , 758 F .2d 1435, 1442-43

(11th Cir . 1985) ; Hawkins v. CECO Corp . , 883 F .2d 977, 982 (11th

Cir . 1989), cert . denied , 110 S .Ct . 2180 (1990) . While there is

no dispute that Plaintiff satisfies the first element of the

rims facie case under Title VII, Plaintiff cannot satisfy the

remaining elements .

a. Plaintiff Cannot Bhov That He Was A Victim of An Adverse Employment Action .

(i) Plaintiff was not "terminated ."

To establish a anima facie case under Title VII, Plaintiff

must shoe that he was the victim of an adverse employment action .

In his Complaint, Plaintiff alleges that he was "terminated" on

July 14, 1991 . (Complaint, = 3) . However, "[t]he discharge that

is proscribed by Title VII is either an actual or constructive

vioa~ua~yca : ..~.. ..__ .. . .. i'i8l.cr v. ni'l. Nat ional, Management LUIIIUQf1V ~ 971 C.

Supp 1099 (M .D . Ga . 1980), aff'd 636 F .2d 313 (5th Cir . 1981) .

"An actual discharge occurs when an employer fires,

dismisses, releases, ousts, lets go, terminates, sacks, gets rid

of, gives the gate to, cans, axes, bounces, or give walking

papers to an employee . . ." Id . The undisputed facts establish

that no such "termination" occurred in this case . In fact,

Plaintiff admitted during his deposition that he was not

terminated . (Ross Dep ., p . 73) On the contrary, Plaintiff

testified that WCW fulfilled each and every one of its

obligations under the Agreement . (Ross Dep ., p . 87) The

Agreement simply expired on July 14, 1991 . Therefore, Plaintiff

WCW 102133 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 128 of 296

cannot establish a pr ima facie case by claiming that he was

terminated .

(ii) Black wrestlers were not paid less than white wrestlers .

In his Complaint, Plaintiff alleges that WCW 11[c]reared a

practice and/or unwritten policy of putting nonwhite employees

and independent contractors into the role of subsidiary

employment or other position, and without concomitant salary,

commission, bonus . . ." (Complaint, 1 6)(emphasis supplied)

This claim is not supported by the facts . In 1991, Plaintiff

earned $1500 .00 per week, and $36,250 .00 through the term of his

contract . As reported on the 1099's, and other accounting

records produced to Plaintiff, Plaintiff earned more money than

approximately 278 of the 334 male independent contractor

wrestlers who wrestled Cep New in 1_991 . lHolman Aff .,. 1_ 5-61

Further, Plaintiff earned more than ten of the thirteen wrestlers

who also were released by WCW during the Summer of 1991, all of

whom were white . (Holman Aft ., y 9)

Additionally, six black wrestlers were paid more than

Plaintiff . (Holroan Aft ., 1 7-8) In fact, Ron Simmons, a black

vale, was one of the highest paid WCN wrestlers, and earned

$190,442 .26 in 1991 (not including $26,592 .07 in endorsements

paid to him by companies that retained Mr . Simmons to endorse

their products and/or services) . (Holman Aft ., = 7-8) Thus, the unrefuted facts in this case shoe that WCW paid many white wrestlers less than Plaintiff and several black wrestlers more

than Plaintiff . Thus, Plaintiff's allegation that WCW

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discriminated against him through disparate compensation has no

basis in fact . Accordingly, PlaiintlEf cannot rely upon U-115

claim to satisfy the second element of the prima facie case,

i .e ., that he suffered an adverse employment decision .

(iii) WCw was not the decisionmaker responsible for determining which wrestlers received endorsement and/or promotion opportunities .

Plaintiff, likewise, cannot claim that his failure to garner endorsement and/or promotion opportunities supports his prima

facie case . While several WCW wrestlers, both black and white, have endorsement and/or promotion deals with companies that hire them to promote their products or services, the vast majority of professional wrestlers, including Plaintiff, never receive such opportunities . (Rhodes Aff ., 1= 16-17 ; Holsan Aff ., q 8)

Nevertheless, Plaintiff alleges that WCW prevented him from getting a wrestling do!! contract or ocher endorsement deals .

(Ross Dep ., p . 57)

Plaintiff admits that he has no evidence to support his claim . Indeed, while Plaintiff makes bald allegations about alleged endorsement deals that he was denied, Plaintiff testified that he has no idea who makes the decisions about which wrestlers are retained to endorse products or services . (Ross Dep ., pp .

58, 139) Likewise, Plaintiff testified that he has no idea what

factors such unidentified decisionmakers rely upon . (Ross Dep ., p . 139) The undisputed facts in this case reveal that the decisions regarding which wrestlers are selected to endorse and/or promote particular products or services are made by the

WCW 102135 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 130 of 296 ` . `

companies who retain the wrestlers, not WCW . (Rhodes Aff ., TI io-ii ; rioiman nii ., q n) in short, viCw does not decide which wrestlers endorse the products or services of other companies .

Even if Plaintiff could establish that WCW had some role in the decisions on endorsements (which Plaintiff cannot),

Plaintiff's claim still would fail since it is undisputed that several black WCW wrestlers in the January-July 1991 time period

(including Ron Simmons and Teddy Long), did receive such opportunities from companies ." (Rhodes Aff ., y= 16-17 ; Holman

Aff ., = 8) Farther, the fact that Mr . Ross did not receive any such opportunities to endorse or promote products should not be surprising, as hundreds of WCW's other wrestlers, both white and black, never received such opportunities either . (Rhodes Aff ., i= 16-17 ; Holman Aff ., i 8) Therefore, Plaintiff cannot claim that his failure to garner endorsement opportunities from other companies supports a Prima facie case that WCW somehow discriminated against him .

(iv) Plaintiff Was Not Qualified To Be wCW's Heavyweight

In his deposition, Plaintiff alleged that he was discriminated against because WCW did not make him its heavyweight champion . (Ross Dep ., p . 54) In order to establish a prima facie case as to this claim, Plaintiff must prove by a preponderance of the evidence that he was mare qualified to be the heavyweight champion than those selected, or alternatively

Ron Simmons made $26,592 .07 from endorsements and promotions in 1991 alone . (Holman Aff . 1 8)

WCW 102136 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 131 of 296

that he satisfied WCW's legitimate expectations of performance .

Hamalinen , 54 F .E .P . Cases at 70 ; Halsell v. Kimberly-Clark

Corp . , 687 F .2d 205, 290 (8th Cir . 1982) ; Lovelace v . Sherwin-

Williams Co . , 681 F .2d 230, 239 (4th Cir . 1982) ; Bauer v . Bailar ,

647 F .2d 1047 (10th Cir . 1981) Plaintiff can make no such

showing .

Plaintiff has come forward with no evidence whatsoever that he was as qualified as those eventually chosen to be champion, or even that he was satisfying WCW's performance expectations .

Instead, Plaintiff relies upon his opinion that he was as good a wrestler as any of WCW's other wrestlers . Even if true,

Plaintiff misses the point . The object of professional wrestling

is for wrestlers to excite the crowd to a level where they want to return to events again and again . Plaintiff was not arousing sufficient interest or selling tickets . (Rhodes Aff ., i 6) He vas not sufficiently entertaining to justify pushing him to champion, or even renewing his Agreement . (Rhodes Aff ., q 6)

Plaintiff ignores the fact that only one person at a time can be the WCW heavyweight champion . In WCW's opinion, Plaintiff vas unqualified to be heavyweight champion . (Rhodes AfE ., = 6)

Plaintiff's assertions to the contrary are entirely irrelevant .

An [individuals] self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability . (citations omitted) . Such statements may create a material dispute about (their] ability, but do nothing to create a dispute about the employer's honesty - (they] do nothing, in other words, to establish that the proffered reason is a pretext for discrimination .

Gustovich v . AT&T Communications, Inc . , 972 F.2d at 849 .

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Arrays, it is the supervisor's perception of Plaintiff's ability (not Plaintiff's perception) which is relevant to a determination of the employers motive . Smith v . Flax , 618 F_2d at 1057 ; See, Newton v . W. R . Grace 6 Co . , Slip Op . No . 87-8961

(11th Cir . 1989) ; Moore v . Sears Roebuck b Co . , 683 F .2d 1321,

1323 n .4 (11th Cir . 1982) ; Green v . Martin Marietta Data Systems ,

42 F .E .P . 1695 (D .D .C . 1987) ; see, Meiri v. Dacon , 759 F .2d 989

(2d Cir . 1985) . Indeed :

While an employer s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is whether the given reason [for not renewing the Agreement] vas a pretext for illegal discrimination . The employer s stated legitimate reason . . . does not have to be a reason that the judge or juror, would act or approve on .

Loeb v . Textron Inc . , 600 F .2d 1003, 1012 n .6 (1st Cir . 1979) .

Plaintiff has wholly failed "a demons tr ate that he -was qualified to be champion, or that he even met the legitimate performance expectations of WCW . Plaintiff's opinion about his qualifications is not evidence, and is irrelevant to the issue of his qualifications . Custovich v . WCW Communications, Inc . , 972

F .2d 845, 849 (7th Cir . 1992) . Moreover, it is unreEuted that

WCW did not think that Plaintiff was qualified to be its heavyweight champion . (Rhodes AfE ., 1 6) Indeed, WCW did not believe that Ross was even meeting WCW's expectations . (Rhodes

Aff ., 1 6 ; Herd Aff ., i 6)

Plaintiff undoubtedly will argue that WCW's views about his qualifications are subjective, not objective . Plaintiff again misses the point, as even if it is determined that WCW relied

WCW 102138 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 133 of 296 i t ! `!

solely upon subjective criteria in assessing Plaintiff's

performance, the law is clear that the use of subjective criteria

does not violate Title VII . Hester v . Southern Railway Co . , 497

F .2d 1374 (5th Cir . 1975) . This is especially true here, since

WCW used the same criteria to justify promoting another black

wrestler, Ron Simmons, to heavyweight champion . There simply is

no evidence that any discriminatory motive vas part of WCW's

evaluation of Plaintiff . °[W]hatever motives (WCW] may have had

in choosing between two people [in the protected classification)

discrimination cannot he one of them." De Volld v. Bailar , 568

F .2d 1162 (5th Cir . 1978) .

For the foregoing reasons, Plaintiff has not established a

prima facie case of discrimination on any grounds . EEOC v .

Western Electric Co . , 713, F .2d 1011, 1014, (4th CiY . 1983) .

Having failed to establish several of the essential elements of a

P rima facie case, summary judgment should be granted in favor of

WCW . Celotex , 474 U .S . 921, 106 S .Ct . at 257 .

3 . Plaintiff Has Not Rebutted ACW's Legitimate, Nondiscriminatory Reasons for Its Actions

Assuming arauendo that Plaintiff could establish a prima

facie case of discrimination, WCW has the burden of articulating a legitimate, non-discriminatory reasons for the complained of actions . Nix v. WLCY Radio/Rahall Communications , 738 F .2d 1181,

1184 (11th Cir . 1984) ; Conner v . Ft . Gordon Bus Company , 761 F .2d

1495, 1499 (11th Cir . 1985) . This burden of rebuttal is

"exceedingly light ." I¢ . To satisfy this burden, WCw need only

WCW 102139 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 134 of 296 i ! !

"articulate" legitimate reasons without being required to prove

its motivation . Burdine , 450 U .S . at 254-55, 101 S .Ct . at 1094 .

NCW refused to renew Plaintiff's Agreement for a legitimate

business reason : budgetary constraints . (Herd Aff ., 1 6)

Moreover, Plaintiff's performances were not sufficiently

productive to justify renewing his contract . (Herd Aff ., 1 6 ;

Rhodes Aff ., 1 6) It must be remembered that in this Court, "[a]

statement that Plaintiff was less productive than others in her

department, without more, constitutes a sufficient articulation

of reasons to carry the employers burden ." Evans , 35 F .E .P .

Cases at 1200 ; Heffernan v. Western Electric Co . , 510 F . Supp .

712, 715 (N .D . Ga . 1981) .

In this case, Plaintiff testified that he has no evidence to

rebut WCW's explanation for its actions . (Ross Dep ., pp . 57-54,

56-58, 97, 100, 117-121, 123-126, 128, 132-137, 139) Plaintiff

not only has no idea of who made the decision not to renew his contract, but he does not know the reason the decision was made, or the factors considered by the decisionmaker . (Ross Dep ., p .

97)

Next, the evidence shows that Plaintiff was not paid less than less qualified white wrestlers . On the contrary, Plaintiff earned more than two hundred and seventy eight (278) WCW wrestlers in 1991, the overwhelming majority of whom were white .

(Holman Aff ., 11 5-8) Again, Plaintiff has admitted that he has no evidence to rebut these facts . (Ross Dep ., pp . 117-119, 135-

139) Plaintiff has no idea what amounts other wrestlers were

WCW 102140 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 135 of 296

t !` paid, who decided what each wrestler was paid, or what factors were considered in making those decisions . (Ross Dep ., pp . 117-

119, 135-139)

On Plaintiff's claim that he should have become WCWIs heavyweight champion, Plaintiff has not offered evidence to overcome WCW's legitimate non-discriminatory reasons for not making him its champion, i.e ., he lacked the charisma and audience appeal and just was not that entertaining . (Rhodes

AfE ., = 6) As detailed in Section III D .2(iv) of this Brief, supra , all Plaintiff offers to refute WCW's rationale is

Plaintiff's subjective opinion that he vas a good wrestler and should have been WCW's champion . Such allegations are simply legally insufficient . Gustovich v. WCW Communications, Inc . , 972

F .2d 845, 849 (7th Cir . 1992) .

Finally, WCW was not responsible for Plaintiff's lack of endorsement and\or promotion opportunities . Since WCW was not the decisionmaker, WGW cannot responsible for those decisions .

Moreover, the undisputed facts show that several black wrestlers received significant endorsement and/or promotion opportunities, while hundreds of white WCW wrestlers did not . (Rhodes Aff .,

= 16-17 ; Holman Aff ., i 8) Thus, Plaintiff's claim that he was discriminatorily denied the chance at endorsement deals flies in the face of the undisputed facts . 12

12 Naturally, Plaintiff readily admitted he has no idea of who made these decisions either, or what factors were considered . (Ross Dep ., pp . 124-126, 135-139)

WCW 102141 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03I Page 136 of 296

Once the Defendant has rebutted Plaintiff's Prima facie

case, the Plaintiff must satisfy his ultimate burden of

establishing by a preponderance of the evidence that a

discriminatory intent motivated the Defendant's actions .

McDonnell-Douglas , 411 U .S . at 802, 93 S.Ct . at 1824 ; Nix, 738

F .2d at 1184 . Thus, to succeed on the dispositive issue of

motivation, Plaintiff must prove that WCW acted with

discriminatory intent .

Plaintiff cannot produce any coqnizable evidence of discriminatory intent to establish a genuine issue of whether

WCW's reasons for its decisions are pretextual . Plaintiff's

"subjective belief, however genuine cannot be the basis for

judicial relief" [in a Title VII or ADEA case] . Elliott v. Group

Medical and Surgical Service , 714 F .2d 556, 567 (5th Cir . 1983), c r . den ., 467 U .S . 1215, 104 S .Ct . 2658 (1984) ; Houser v . Sears

Roebuck b Co . , 627 F .2d 756, 759 (5th Cir . 1980), In the

Eleventh Circuit, Plaintiff must controvert WCW's legitimate reasons "by setting forth specific facts . . . shoaling fan

illegal factor] was a substantial factor in (the) decision ."

Mauter v, Hardy Corp . , 825 F .2d 1554, 1558 (11th Cir . 1987) .

Plaintiff has failed to do so, and the result is that his claims must fail . IV .

For the above and foregoing reasons, Defendant's Motion for

Summary Judgment should be granted on all Plaintiff's claims .

WCW 102142 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03, Page 137 of 296 .I

2~m This day of March, 1994 .

Respectfully submitted,

J&qz ~'/ 0*0 Stephen W. Riddell, Esq_ Georgia State Bar No . 604810

~~~~j Cw2J Kip . Roth Georgia State Bar No . 615615

Attorneys for Defendant World Championship Wrestling, Inc . TROUTMAN SANDERS 5200 NationsBank Building 600 Peachtree Street, N .E . Atlanta, Georgia 30708-2216 (404) 885-3000

WCW 102143 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 138 of 296

World Championship wroetlinq, 2 .^.c . Freelance Wrestler/ Independent Contractor Agreement

1 . I, Robert Ross . Jr . (Ranger Ross ), Name Ring Name

agree to perform services for World Championship Wrestling, Inc . (^WCW^) as requested by WCW at the rate of $1,500 .00 per week for the period of January 15, 1991 through July 14, 1991 . I understand that Z shall be entitled to such compensation only if I appear and complete the services requested by WCW for such event and in the manner requested by WCW .

2 . I understand and agree that I perform such services as an independent contractor and not as an employee of WCFt_ I agree that I shall be fully responsible for taxation of the amounts paid to me by WCW as compensation for my services and that WCW shall bear no responsibility for such taxation . I agree that I am not entitled to the benefits provided by WCW to its employees . I understand that SiCii makes no commitment to use my services and makes no guarantee of any number of events or amount of compensation .

3 . I understand that if r_ am injured inside the ring and within the crowd barriers at an event while performing services for WCW pursuant hereto, as determined by the schedule of physicians provided by WCW, WCW shall assume responsibility for medical expenses directly related to such injury through and according to its respective insurance program . I understand that I will be paid only for events for which I vas scheduled at the time I vas injured and only if WCW's doctor certifies that the injury prevents me from wrestling and I appear at the event for interviews and other tasks as requested by WCW (unless I am unable to appear as certified by WCK's doctor) ; provided, however, that such payment shall be reduced by payments other than those for medical treatment to which I may be entitled under WCW's insurance or otherwise . I understand Z will not be paid for events for which I might have been scheduled while I am injured .

4 . I agree that all programs, recordings and work product in connection with which I perform services and my contributions thereto (the "Works") shall belong solely and exclusively to WCW . To the extent that such Works are considered contributions to collective works and/or parts or components of audio-visual works, I agree that the Works shall be considered "works made for hire" under the U .S . Copyright Act of 1976, as amended . To the extant that such Works are deemed otherwise, I assign to WCW all rights, title and interest in and to the copyright of such Works .

FXNie I T l/7 h

WCW 102144 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 139 of 296 I "f `.

5 . I release WCW and its agents from and naive any and all claims arising out of my independent contractor relationship with WCw, except as set forth specifically above in paragraph 3 . I have read this Agreement and understand its terms . I agree that my relationship with WCW is covered by this Agreement for all purposes and at all times unless and until it is superseded by a subsequent written agreement, and that this Agreement shall be governed by the laws of the state of Georgia, whose courts shall have jurisdiction with respect to any dispute arising under this Agreement or my relationship with SiCw .

World Champi hip wrestling, Inc . I e endent Contr or

Signature Signature

1- IF ~ C6~ /9y~ Date Date

-2-

WCW 102145 a Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 140 of 296

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

ROBERT ROSS, JR .,

Plaintiff, CIVIL ACTION FILE V. ) NO . 1 :93-CV-1206-J EC WORLD CHAMPIONSHIP WRESTLING, INC ., )

Defendant . )

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the

within and foregoing MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT

WORLD CHAMPIONSHIP WRESTLING, INC .'S MOTION FOR SUMMARY JUDGMENT

upon opposing counsel by depositing a copy in the United States

`!ail with sufficient postage thereon addressed to :

Gary J . Pernice, Esq . Pernice & Associates, P.C . 110 Hammond Drive, N .E . Atlanta, Georgia 70528-4806 ri This 2i day of March, 199 .

& Step en W . Riddell Georgia State Bar No . 604810

Attorney for Defendant world championship Wrestling, Inc .

TROVPMAN SANDERS 600 Peachtree Street, N .E . Suite 5200 Atlanta, Georgia 70708-2216 (404) 885-3000

WCW 102146 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 141 of 296

EXHIBIT / ATTACHMENT

,V (To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 142 of 296

~ . .

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA . .,.J -n L w3~ ATLANTA DIVISION . . . Davis v . World Championship Wrestling, Inc . an& :~furner ~(((~,~~~~ Sports, Inc . Civ . File No . 1-00-CV-1716-CC' ^-,,~'"+~""'~,Clerk Saengsiphan v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1719-CC ; Speight v . World Championship Wrestling, Inc . and Turner Sports Inc . , Civ . File No . 1-00-CV-1718-CC ; Worthen v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1717-CC ; Reeves v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1720-CC ; Easterling v, World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1715-CC Onoo v . World Championship Wrestling, Inc ., Turner Sports, Inc ., Civ . File No . 1 :00-CV-0368-CC Nortis v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No . 1 :00-CV-0369-CC Walker v . World Championship Wrestling, Inc ., Turner Sports, I nc ., Civ . File No . 1 :00-CV-0367-CC ; Patterson v . World Championship Wrestling, Inc ., Turner Sports, Inc ., Turner Entertainment Group, Inc . Civ . File No . Civ . File No . 1 :01-CV-1152-CC

SUPPLEMENTAL EXPERT REPORT FOR PLAINTIFFS TESTIMONY OF DR . DAVID W. RItiSMUSSEN

This supplemental report uses more recent evidence on the number of African-Americans attending wrestling tryouts sponsored by WCW . Additional testimony confirms the results

reported in my initial report, i .e ., that the average estimate of the availability of African-Americans for employment as wrestlers is about 25 percent . This report also uses more complete data on the racial identification of wrestlers training

at the Power Plant and those actually employed as wrestlers .

The substantive conclusions reported in the original report are Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 143 of 296

not only contitmed, but the statistical evidence that African-

Americans are under- represented as wrestlers is in fact stronger than previously reported .

The availability of African-Americans, the benchmark by which African-American representation is to be evaluated, was based on the personal impressions of five individuals familiar with try-outs held at the Power Plant . I have now received data on the impressions of three more persons whose estimates of

African-American availability ate included in this report .

The methodology used here is identical to that of the initial report . Seven individuals who have testified as to their impressions of the representation of African-Americans among persons at the try-outs are recorded in Table 1 .` As is clear in the Table, four of these individuals provide an estimated range and three provide a specific figure . Estimates of the percent African--American range from 10 to 40 percent .

Column 1 counts each estimate as an independent observation, so

Hamilton, Nortis, Snakovsky, and walker, in effect, get two votes . The mean of these eleven estimates is 26 .0 percent

This information is given in depositions or by declaration, the dale of which is following the person's name: D.E. Bruce (November 21, 2002); Joseph N. Hamilton (March 22, 2(102) ; H. Norris (December 13, 2002); Brenda F. Smith (April 30; 2002); John Paul Snakovsky (May 30, 2002); B. Walker (November 7,2002); and Moses Williams (May 28; 2002). Tony Byron Cart provided his impressions of African-American participation in a deposition (January 28, 2002) and his estimates were included in my original report. His eriimales varied widely (from a low of 10 percent to apprmomalely 40 percent), but upon further inspection it is not clear whether these estimates pertain to wrestling tryouts or gaining at the Power Plant. Given the uncertainty of his testimony, his estimates are not inducted in this summary report. However, including this estimate has virtually no effect on the benchmarks reported in Table I below.

- 2 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 144 of 296

TABLE i

ESTIMATES OF AFRICAN-AMERI('AN REPRESENTATION AT POWER PLANT TRYOUTS

SOURCE PERCENT AFRICAN AMERICAN ESTIMATES AVERAGE

D . E . Bruce 33 33

J . N . Hamilton 12 .5 Low 10 High 15

H . Norris 35 Low 30 High 40

J. Snakovsky 35 Low 30 High 40

B . F . Smith 12 12

B . Walker 18 Low 16 high 2C

M . Williams 40 40

Mean 26 26 .5 Median 30 33 Mode 40 35

African-American, the median (the mid-point of the range of estimates) is 30 percent, and the mode (the most frequent estimate) is 40 percent .

As noted in the original report, one could reasonably object to counting any individual's estimate twice, so column two provides the mid-point of the ranges provided by Hamilton,

Norris, Snakovsky, and Walker . The resulting mean is 26 .5

- 3 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 145 of 296 . (

E12CCBf1L African-AlueLic_oi, ~.nthe me di an io t.CLCCR .. . .Ind... . the .....

is 35 percent .'

Another source of information about the availability of

African-Americans as wrestlers was provided in a list that

identifies the race of 82 individuals who were trainees at the

Power Plant over the 1996-2000 period . I have been informed that the most complete list of such persons, identified by whether they are African-American, is in the Declaration of

Harrison Norris (dated December 13, 2002) . Of 82 persons being trained at the Power Plant, 19 (17 .1 percent) are identified as being African-American .

Five benchmarks are used in the following statistical analysis . The lowest is the 17 .1 percent that represents the actual known African-American participation in the Power Plant .

The others are from Table 1 : the mean, median, and mode of column one (26, 30 and 40 percent respectively) and the mode of column 2 (35 percent) .

As in the initial report, Tables 2 and 3 report the results of the statistical analysis of African-American representation among wrestlers during the 1996-2000 period . First consider

Table 2 . The first column shows the number of contract wrestlers reported in the Declaration of H . Norris . Column two shows the

' Recall that even if collectively these approximations of applicant floc give an accurate picture of African-American representation at the Power Plant, this estimate of interest among qualified African-Americans could be biased downward due to the chilling effect that was described in the initial report .

- 4 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 146 of 296

various benchmarks, the petcent African-American expected among these wrestlers . Column three shows the number of African-

American wrestlers expected given the benchmark (column 1 times column 2) ; column 4 shows the actual number of African-Americans identified in the declaration of Harrison Norris, and column five reports the difference between the actual and expected numbers of African-Americans . The last column shows the number of standard deviations . Recall that the prevailing standard is that a difference of two or more standard deviations is statistically significant .

The first benchmark, African-American representation among trainees at the Power Plant, is 17 .1 percent . WCW hired 227 persons during 1996-2000, and had they hired African-Americans at a rate of 17 .1 percent the expected number of African-

American hires would be 38 .8 . Instead, only 17 were hired ;

-5 .26 standard deviations from the expected number of 38 .8 .

This is statistically significant .

Subsequent benchmarks, as noted above, come from Table 1 .

The number of standard deviations range from -6 .36 to -10 .0, far beyond the standard of -2 .00 standard that indicates that chance accounts for the under-representation of African-Americans at

WCW . When the shortfall of African-American wrestlers is more than -6 .00 standard deviations, as in row two of Table 2, this result is expected by chance in less than 1 chance out of

- 5 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 147 of 296

100, 000 .' The subsequent CVI!!EJGL Lsoiis are even ices ii!:°lY t^ occur from an equal opportunity employer if the benchmarks reflect African- American availability and interest in a wrestling career .

TABLE 2

STANDARD DEVIATION ANALYSIS OF AFRICAN-AMERICAN REPRESENTATION AMONG WRESTLERS (1996-2000)

A. EXCLUDING DISPUTED WRESTLERS

NUMBER OF EXPECTED NO . OF ACTUAL NO . OF STD WRESTLERS BENCHMARK AFRICAN-AMERICANS NUMBER DIFFERENCE DEVIATIONS Z27 17 .1 38 .8 17 -21 .8 -3 .85 227 26 .0 59 .0 17 -42 .0 -6 .36 227 30,0 68 .1 17 -51 .1 -7 .40 227 35 .0 79 .5 17 -62 .5 -8 .69 227 40 .0 90 .8 17 -73 .8 -10 .00

B . INCLUDING DISPUTED WRESTLERS

NUMBER OF EXPECTED N0 . OF ACTUAL NO . OF STD WRESTLERS BENCHMARK AFRICAN-AMERICANS NUMBER DIFFERENCE DEVIATIONS 237 17_1 39 .5 20 -19 .5 -3 .41 231 26 .0 60 .1. 20 -40 .1 -6 .01 231 70 .0 69 .3 20 -49 .3 -7 .00 231 35 .0 80 .9 20 -60 .9 -8 .39 231 40 .0 92-4 20 -'72 .4 -9 .72

Panel B of Table 2 is identical to Panel A except that the

four disputed wrestlers are included in the analysis . Three of

the disputed persons are African-American, so the total number of wrestlers rises to 231 and the actual number of African-

Americans hired rises to 20 . The results do not change : the number of standard deviations range from -3 .41 to -9 .72, once

3 In Table 2 of the original report these was a typographical error in cow two of Panel A. When the benchmark is 23 .5 in that table, the number of standard deviations is -5 .71, not -7 .71 as originally reported .

- 6 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 148 of 296

Air

a Rain indicating statistically significant under-representation of African- Americans . The number of African-American wrestlers will be 3 .41 standard deviations below the expected number by chance alone about one time in 1,000 . Recall that -6 .00 standard deviations will occur less than one chance in 100,000 cases .

As noted in the initial report, the analysis in Table 2 is flawed in that it considers the number of persons in Exhibit A but does not account for the actual frequency of employment . As an illustration, suppose an employer hired two persons, a

Caucasian and an African-American, over a 10-year period . Using the method employed in Table 2, African-American representation would be SO percent . But suppose that the Caucasian worked in each of the 10 years and the African-American worked in only one . By looking at African-American representation by salary years a very different picture emerges : instead of 50 percent,

African-American representation is oily 1 cut of 11, or 9 .1 percent .

Table 3 investigates African-American representation among

WCW wrestlers using salary years as the unit of observations .

Based on data used in the original report and the Norris

Declaration, there are 680 cells in which a person is reported

to have received a salary . Of these cells, 51 (7 .5 percent)

- 7 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 149 of 296

represent salaries earned by African-Americans .' The benchmarks

that measure African-American availability are identical to

those in Table 2 . When the benchmark is 17 .1 percent, the

lowest in the table, the shortfall of African-American wrestlers

is -6 .65 standard deviations from the expected number . As in

Table 2, the number of standard deviations rises with the

benchmark : when the benchmark is 90 percent, the shortfall is

-17 .30 standard deviations . There is less than one chance in a

million that this result could happen by chance alone .

TABLE 3

STANDARD DEVIATION ANALYSIS OF AFRICAN-AMERICAN AMONG WRESTLERS BY SALARY YEARS (1996-2000)

EXCLUDING DISPUTED WRESTLERS

NUMBER OF EXPECTED NO . OF AC'CUAL NO . OF STD SALARY YEARS BENCHMARK AFRICAN-AMERI CANS NUMBER DIFFERENCE DEVIATIONS 680 17 .1 116 .3 51 - 65 .3 -6 .65 680 26 .0 176 .8 51 -125 .8 -11 .00 680 30 .0 204 .0 51 -153 .0 -12 .80 680 35 .0 238 .0 51 -187 .0 -15 .63 680 40 .0 272 .0 51 -221 .0 -17 .30

This analysis strongly suggests Lhat African-Americans are

significantly under-represented among wrestlers at WCW . Even

when African-American representation at the Power Plant is used

as the benchmark, African Americans are significantly under-

represented . Even the highest benchmark in Tables 2 and 3 may

under estimate the true availability of qualified African-

4 In the original report these were 681 total salary years, 51 of which were African-American .

- 8 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 150 of 296

Americans as noted in the pievious report, since it is possible

that if WCW was a truly equal opportunity employer it would confront an applicant pool of interested and qualified persons that mirrored that of professional basketball or professional

football .

Dr . David W . Rasmussen

Plaintiffs specifically reserve the right to

supplement this disclosure in any manner permitted under

the Federal Rules of Civil Procedure, the Local Rules of

this Court or any other applicable taw .

This -jfd day of january, 2003 . -1dW

Cary Ichter Georgia Bar No . 382515 Charles J . Gecnazian Georgia Bar No . 291703 Michelle M . Rothenberg-Williams Georgia Bar No . 615680

MEADOWS, ICHTER b BOWERS, P .C . Eight Piedmont Center, Suite 300 3525 Piedmont Road Atlanta, GA 30305 Telephone : (404) 261-6020 Telecopy : (404) 261-3656

- 9 - a Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 151 of 296

CERTIFICATE OF SERVICE

This is to certify that I have this date served

opposing counsel to this action with the foregoing

Supplemental Expert Report for Plaintiffs' Testimony of

David W . Rasmussen via hand delivery, addressed as follows :

John J . Dalton James Lamberth Eric Richardson Evan Pontz Troutman Sanders LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . 12 Atlanta, Georgia 30308-22165

This V day of January, 2003 .

Michelle M . Rothenberg-Williams Georgia Bar No . 615680 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 152 of 296

. . J

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Davis v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1716-CC ; Saengsiphan v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1719-CC ; Speight v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1718-CC ; worthen v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1717-CC ; Reeves v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1720-CC ; Easterling v . World Championship Wrestling, Inc . and Turner Spo=ts, Inc . , Civ . File No . 1-00-CV-1715-CC Onoo v . World Championship Wrestling, Inc ., Turner Sports Inc . Civ . File No . 1 :00-CV-0368-CC Norz'is v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No . 1 :00-CV-0369-CC Walker v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No . 1 :00-CV-0367-CC ; Patterson v . World Championship Wrestling, Inc ., Turner Sports, Inc ., Turner Entertainment Group, Inc . Civ . File No . Civ . File No . 1 :01-CV-1152-CC

PLAINTIFFS' RULE 26(a)(2) DISCLOSURES OF EXPERT TESTIMONY OF DR . DAVID W . RASMUSSEN

Pursuant to Federal Rule of Civil Procedure 26(a)(2),

Plaintiffs hereby identify the expert testimony of their

statistician, Dr . David W . Rasmussen, who is the James H .

Gapinski Professor of Economics at Florida State University, as

follows :

A . Opinions, Basis and Reasons :

Introduction

This report evaluates the contention that the World

Championship Wrestling (WCW) denied equal treatment to African- Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 153 of 296

t American wrestlers in terms of employment, salary and other

Ttio ~`v ictii^al p~~ : contract i.ciii$ . r3cn :o TITPCPf1fP!'~ hPT'P ChP(jG light on this question in two ways . First, evidence is presented that shows African-Americans are under-represented among WCW wrestler positions . These data are consistent with the contention that African-American wrestlers did not encounter

an equal opportunity employer when dealing with WCW . Second,

the salary and other compensation of African-American wrestlers

are explored . The fact that African-Americans are significantly

underrepresented among wrestlers hinders formal statistical

analysis of their salaries relative to other wrestlers, but the

available evidence strongly indicates that African-Americans

performers did not receive compensation that is commensurate

with other wrestlers .

Hiring

Methodology . The following statistical analysis uses the

methodology that is generally accepted in Title VII litigation .

At issue is whether the WCW hired African-Americans in

proportion to their representation in the qualified applicant

pool . The crucial question to be answered is how far the

proportion of African-Americans among total paid wrestlers stray

from the expected proportion and still be regarded as "racially

neutral ." This is a straightforward statistical problem, and

the prevailing legal doctrine is in accord with the standard

- 2 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 154 of 296

., Aff

methods used in social science : discrimination is revealed when

cite e!iiYlOycT' act;; a! be hav_o r _rPsui 1_r_~ ;_n r.hP number of African-

Americans hired to be more than two standard deviations below

the number expected based on their availability in the

workforce ." Statistical analysis allows the analyst to make

probability statements . When actual number of African-Americans

hired is two standard deviations below the expected number, it .

reveals that there is only one chance in twenty (five percent)

that an equal opportunity employer by chance would have the

racial distribution of retention decisions that is observed .

This statistical calculation is driven by three numbers :

the actual number of African-Americans hired, the total number

of persons hired, and the expected proportion of African-

Americans among these hires . Generally, the actual numbers of

African-Americans and total hires are relatively free of

controversy . More contentious is the proportion of hires that

are expected to be African-American, the "benchmark" by which

actual hiring performance is evaluated . This controversy is

minimized when there is a good record of all persons who applied

for employment together with identification of those who are

African-American . For obvious reasons, these data are not

'Statistical formula !or calculating the number of standard deviations is the actual number of African-Americans hired minus the expected number divided by the standard deviation which is the square root of np(I-p) where n is the total number of hires and p is the benchmark measuring the percent African-Americans that are available. It should be noted that social scientists recognize that important differences may occur even when customary significance levels are not realized .

3 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 155 of 296 -,

generally available . However, even excellent applicant flow

data maybe compromised _f quaiiiieu African-A-c«c,.. . ,.~e

reluctant to apply because they believe that the employer will

discriminate against them .2 Thus when good applicant flow data

that identifies African-Americans are not available, as in this

case, it is customary to use labor market statistics to

approximate the expected proportion of African-Americans among

qualified applicants .

Wrestlers

Data are available to examine the number of African-

American wrestlers under contract with WCW between 1996 and

2000 . The evidence available at this time suggests that there

are 228 wrestlers, 17 (7 .5 percent) of whom were African-

American .' The crucial question is : by what benchmark are we to

evaluate this hiring performance?

One possible starting point is to get information about the

relative number of African-Americans who are interested in

becoming professional wrestlers . WCW has a school, the Power

Plant, to train wrestlers . The proportion of African-Americans

among qualified persons who desire to attend this school would

' This "chilling" effect that potentially lower the percent African-American among applicants is analogous to the "discouraged worker" classification used by the U.S . Department of Labor. Discouraged workers are those that would look for work i( they believed they could find a job somewhere in the economy. The chilling effect represents firm specific discouraged workers: individuals do not apply because they believe the employer is not an equal opportunity employee ' Supplemental Response to Plaintiffs' Consolidated First Interrogatories, Interrogatory No. 3 ., Exhibit A.

- 4 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 156 of 296 - . ` Aff

provide an expression of interest in this line of work .

1.7;;fO«unaroiY, rrn,_versal Wrestling Corporation has stated that .

it does not have this information .' There is, however, .

testimony from five individuals who report their personal

impressions of the representation of African Americans among

school participants .

Five individuals have testified as to their impressions of

the representation of African-Americans among persons at the

Power Plant .s These are recorded in Table 1 . As is clear in the

Table, three of these individuals provide an estimated range and

two provide a specific figure . Estimates of the percent

African-American range from 10 to 40 percent . Column 1 counts

each estimate as an independent observation, so Carr, Hamilton,

and Snakovsky, in effect, get two votes . The mean of these

eight estimates is 23 .5 percent African-American, the median

(the mid-point of the range of estimates) is 27 .5 percent, and

the mode (the most frequent estimate) is 40 percent .

One could reasonably object to counting any individual's

estimate twice, so column two provides the mid-point of the

ranges provided by Carr, Hamilton, and Snakovsky . The resulting

' I have been provided with a copy of Exhibit A that identifies persons who are African-American and persons whose presence on the list is disputed. These data have been supplemented by Plaintiffs counsel and a draft Affidavit by Bobby Walker. Defendant Universal Wrestling Corporation's Supplemental Responses and Objections to Plaintiffs' First . Interrogatories to Defendants World Championship Wrestling, Inc . and Turner Sports, p. 4

- 5 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 157 of 296

mean is 26 .4 percent African-American and the median is 32 .5 percent .

TABLE 1

ESTIMATES OF AFRICAN-AMERICAN REPRESENTATION AT POWER PLANT TRYOUTS

PERCENT AFRICAN-AMERICAN SOURCE ESTIMATES AVERAGE T .B . Carr 32 .5 Low 25 High 40 J .N . 12 .5 Hamilton Low 10 High 15 J .P . 35 Snakovsky Low 30 High 40 B,F . smith 12 12 M . 40 40 Williams

Mean 23 .5 26 .4 Median 27 .5 32 .5 Mode 40 n .a .

Even if collectively these approximations of applicant flow

give an accurate picture of African-American representation at

the Power Plant, this estimate of interest among qualified

African-Americans could be biased downward if African-American

applicants are discouraged from applying because they believe

6 This information is given in depositions, the date of which is following the person's name Tony Byron Cacr (January 28, 2002); Joseph N. Hamilton (March 22, 2002); Brenda F. Smith (April 30, 2002); John Paul Snakovsky (May 30,2002); and Moses Williams (May 28, 2002)

- 6 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 158 of 296 . . , ~ i .' . , ..

WCW is not an equal opportunity employer . This is the chilling

effect desc-ribed .,b--,.,e .

Another source of information about the availability,oE

African-Americans as wrestlers is a list by which the WCW has

identified each individual who was a trainee at the Power Plant

over the 1996-2000 period .' OP 82 persons on this list, 11

(13 .4) have been identified as African-American . This is

obviously a flawed benchmark since it can obviously be a product

of discrimination if the Defendant has a bias against choosing

African-Americans as trainees . Nevertheless, the 13 .4 percent

figure is useful as a lower bound estimate of African-American

interest and availability in a wrestling career since WCW in

fact achieved this level of representation at the Power Plant .

One way to approximate what an estimate applicant flow in

the absence of a chilling effect is to consider the

representation of African-Americans in activities that require

attributes similar to those of professional wrestling : a list

that would include excellent athletic ability, physical strength

and size, and to be able follow a highly scripted sequence of

events . These attributes are obviously found in professional

football . African-Americans are much more highly represented in

professional football than they are in the general population :

blacks account for 67 percent of the players in the National

- 7 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 159 of 296

Football League .e These data indicate African-American participation that is far in excess of any of the estimates provided in Table 1, which suggests these estimates may be downward biased estimates of a true measure of the availability of African-Americans who are interested in and qualified to be professional wrestlers .

Tables 2 and 3 report the results of the statistical analysis of African-American representation among wrestlers during the 1996-2000 period . First consider Table 2 . The first column shows the number of contract wrestlers listed in Exhibit

A.9 Column two shows a variety of benchmarks, the percent

African-American expected among these wrestlers, which are drawn

from Table 1 . Column three shows the number of African-American

wrestlers expected given the benchmark (column 1 times column

2) ; column 4 shows the actual number of African-Americans

identified in Exhibit A, and column five reports the difference

actual and expected number of African-Americans . The last

column shows the number of standard deviations . Recall that

the prevailing standard is that a difference of two or more

standard deviations is statistically significant .

Five benchmarks are used . First, is the African-American

representation among trainees at the Power Plant, 13 .4 percent .

'Supra, note 3, Exhibit B. " John Simons, U.S. News and World Report (March 24, 1997, pp. 468). The same source indicates that blacks account for 30 percent of the players in the National Basketball Association

- 8 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 160 of 296 , . . . .'' ( !`, WCw hired 228 persons during 1996-2000, and had they hired

African- :.1l:CLil.a ~S1 F~~ u iu,~e of i 3 n pe rcent the o__pa_r_t_af_in_iimhar

of African-American hires would be 30 .6 . Instead, only 17 were

hired; -2 .63 standard deviations from the expected number . This

is statistically significant . In probability terms this could

happen by chance alone only one time in 100 .

Subsequent benchmarks come from Table 1 . The statistical

analysis in row two uses the average (mean) availability from

column one (23 .5 percent) ; row three is the median estimate from

column one (27 .5 percent) ; row four is the median value of

column 2 (32 .5) and row five is the most frequently cited

estimate in column one (90 percent) .

The number of standard deviations range from -2 .63 to

-10 .03, far beyond the standard of -2 .00 standard that indicates

that chance does not account for the under-representation of

African-Americans at wCW . To put these statistics in

perspective, there is only 1 chance in 1,000 that WCw is an

equal opportunity employer when the number of actual African-

American wrestlers is 3 .00 standard deviations below the

expected number . When the shortfall of African-American

wrestlers is -6 .00 standard deviations, as in row two of Ta]?1e

2, this result is expected by chance in less than 1 chance out

of 100,000 .

Supra Dote 3.

- 9 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 161 of 296 . . . ¬ TABLE 2

STANDARD DEVIATION ANALYSIS OF AFRICAN-AMERICAN REPRESENTATION AMONG WRESTLERS (1996-2000)

A . EXCLUDING DISPUTED WRESTLERS

NUMBER OF EXPECTED NO . OF ACTUAL NO . OF STD WRESTLERS BENCHMARK AFRICAN-AMERICANS NUMBER DIFFERENCE DEVIATIONS 228 13 .9 30 .6 17 -13 .6 -2 .63 228 23 .5 53 .9 17 -36 .9 -7 .71 228 27 .5 62 .7 17 -95 .7 -6 .78 228 32 .5 74 .1 17 -57 .1 -8 .07 228 90 .0 91 .2 17 -79 .2 -10 .03

B . INCLUDING DISPUTED WRESTLERS

NUMBER OE EXPECTED NO . OF ACTUAL NO . OF STD WRESTLERS BENCHMARK AFRICAN-AMERICANS NUMBER DIFFERENCE DEVIATIONS 232~} 13 .9 31,~ .1 20 -1~7 1,~ .1 -2 . '1] 9

L.1L LJ .J S7 .S 20 -J Y .S -S .JS 232 27 .5 63 .8 20 -43 .8 -6 .99 232 32 .5 75 .4 20 -55 .9 -7 .77 232 90 .0 92 .8 20 -72 .8 -9,76

Panel B of Table 2 is identical to Panel A except that the

four disputed wrestlers are included in the analysis . Three of

the disputed persons are African-American, so the total number

of wrestlers rises to 232 and the actual number of African-

Americans hired rises to 20 . The results do not change : the

number of standard deviations range from -2 .19 to -9 .76, once

again indicating statistically significant under-representation

of African- Americans . The number of African-American wrestlers

will be 2 .19 standard deviations below the expected number by

chance alone three times in 100 . Recall that -6 .00 standard

- 10 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 162 of 296 . . , .' ! deviations will occur by chance in less than once in 100,000

cases

The analysis is Table 2 is flawed in that it considers the

number of persons in Exhibit A but does not account for the

actual frequency of employment . As an illustration, suppose an

employer hired two persons, a Caucasian and an African American,

over a 10-year period . Using the method employed in Table 2,

African-American representation would be 50 percent . Hut

suppose that the Caucasian worked in each of the 10 years and

the African-American worked in only one . By looking at African-

American representation by salary years a very different picture

emerges : instead of 50 percent, African-American representation

is only 1 out of 11, or 9 .1 percent .

Table 3 investigates African-American representation among

WCW wrestlers using salary years as the unit of observations .

In Exhibit A, there are 681 cells in which a person is reported

to have received a salary . Of these cells, 51 (7 .5 percent)

represent salaries earned by African-Americans . The benchmarks

that measure African-American availability are identical to

those in Table 2, When the benchmark is 13 .4 percent, the

lowest in the Table, the shortfall of African-American wrestlers

is -4 .53 standard deviations from the expected number . As in

Table 2, the number of standard deviations rises with the

benchmark : when the benchmark is ?0 percent, the shortfall is

- 11 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 163 of 296 , . , E

-17 .32 standard deviations There is less than one chance in a

..~_~ . ~~,Yly :R 1111111( 1(:ll~i:ll u19 icSuifa ... . . 1~0 __.,on h 1 . rl~wn~a alnna

TABLE 3

STANDARD DEVIATION ANALYSIS OF AFRICAN-AMERICAN AMONG WRESTLERS BY SALARY YEARS (1996-2000)

EXCLUDING DISPUTED WRESTLERS

NUMBER OF EXPECTED NO . OF ACTUAL NO . OF STD SALARY YEARS BENCHMARK AFRICAN-AMERICANS NUMBER DIFFERENCE DEVIATIONS 681 13 .4 91 .3 51 -40 .3 -4 .53 681 23 .5 160 .0 51 -109 .0 -9 .85 681 27 .5 187 .3 51 -136 .3 -11 .70 681 32 .5 221 .3 51 -170 .3 -13 .94 681 40 .0 272 .4 51 -221 .4 -17 .32

This analysis strongly suggests that African-Americans are

significantly under-represented among wrestlers at WCW . Even

when African American representation ac the Power Plant is used

as the benchmark, African Americans are significantly under-

represented . Even the highest benchmark in Tables 2 and 3 may

under estimate the true availability of qualified African-

Americans since it is possible that if WCW was a truly equal

opportunity employer it would confront an applicant pool of

interested and qualified persons that mirrored that of

professional basketball or professional football .

Salary

Salaries of wrestlers within any year vary greatly . -For

example, in 1999 annual compensation varies from under $10,000

- 12 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 164 of 296

to $4 .65 million . The average wrestler's salary was $237,933

receiving that year . Of the 160 wrestlers cco...,mpensation..~.r~ . ...~ .._. . that year, 54 (33 .1°s) received under $50,000 and another 33 (20, .6) received a salary between $50,000 to $99,999 . This concentration of salaries at the lower end of the overall salary range is reflected in the median (SO percent of the distribution lie on both sides of the median) income compared to the mean income : the median is $87,000 while the mean is about $238,000 .

At the ocher end of the spectrum, only 14 wrestlers received salaries in excess of $500,000 and only 9 earned more the

$750,000 in 1999 . This dispersion of salaries limits the possibilities to statistically evaluate the compensation of

African-Americans relative to other wrestlers .

The structure of WCw wrestling salaries, then, appears to

be one in which most wrestlers make a relatively modest salary

and a few do very well . Therefore the statistical analysis

focuses on the opportunities for African-Americans to enter the

ranks of the most successful wrestlers or what we will call the

salary elite . Discrimination, of course, can take many forms .

Therefore we also investigate the possibility that African-

Americans who are relatively successful at WCW in terms of

compensation may have suffered from unequal employment practices

because it took them longer to achieve high standing than

comparable Caucasian wrestlers .

- 13 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 165 of 296

9 6 E ! Defining the Salary Elite

Table 3 shows the salary d_ stributic^. for t"."recr_lerG in

1999, which clearly reveals that there is a break in the

distribution at $500,000 . Only 8 .7 Percent of the wrestlers in

that year earned over one-half million dollars and only 5 .6

percent earned over $750,000 . The $750,000 figure is the most

appropriate definition of elite salary status for two reasons .

First, most wrestlers who reached this salary figure eventually

earned an annual salary in excess of $1 million . This is not

the case for those whose top salary was in the $500,000 to

$750,000 range . Second, licensing income as a percent of salary

makes a sharp jump when salaries are in excess on $750,000 . In

1999, licensing income as a percent of salary was 14 .71 for the

9 wrestlers making over $750,000 but only 4 .03 percent for the

five wrestlers making between $500,000 and $749,999 . In

absolute figures the former group had an expected licensing

income of $83,584 more than the lower income group . This is

just slightly lower than the median wrestlers annual salary .

Thus, it seems appropriate to define the salary elite to be the

top five percent of the salary distribution, or those that make

in excess of $750,000 .

- 14 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 166 of 296

! ! TABLE 4

SALARY DISTRIBUTION OF WRESTLERS, 1999

SALARY NUMBER PERCENT 0 - 49,999 53 33 .1 50,000 - 33 20 .6 99,999 100,000 - 38 23 .8 199,999 200,000 - 22 13 .8 499,999 500,000 - 5 3 .1 749,999 750,000 - 1 .6 999,990 1,000,000 - 5 3 .1 2,000,000 Over 2,000,000 3 1 .9 TOTAL 160 100 .0

African American Wrestlers Among the Salary Elite

During the 1996-2000 period, 10 wrestlers earned $750,000 or more . Combined they account for 29 years earning an "elite" salary . These elite salary earners are shown in Table 5 . Since

African-Americans account for 7 .5 percent of all salary years during this time period, we expect that they should receive about that portion of these elite salary years . The expected

number of African-Americans is 2 .18, but in fact there are none

achieving elite status . This shortfall in the expected number

of African-Americans is -1 .18 standard deviations from the

actual number ; this is not statistically significant at

customary test levels . However, it is worth noting that this

- 15 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 167 of 296 ., ,

test statistic means that there is about .13 percent chance of

observing CI715 LCSUl : uiiE -v Ciidi~Cc .l0 iiiia ~TieQiiS ti-at t ;icye Z--

less than 1 chance in 7 that there would be no African-Americans

in the elite status due to chance .

TABLE S

WRESTLERS WITH ELITE SALARIES AND YEARS IN SERVICE BEFORE MAKING $600,000 OR MORE

NUMBER OF SALARY YEARS TIME TO NAME $1M $750-$1M $600-$750 $600+ ABBOT 0 0 1 1 HOLLEA, T 4 0 0 na BORDEN 2 2 0 1 EDDY 0 1 1 0 FALKENBERG 2 0 0 1 FLIEHR 0 0 1 2 GOLDBERG 2 p HALL 1 2 1 i HART 3 0 0 1 NASH 3 1 0 1 PFOHL 2 1 1 1 POFFO, R . 3 0 1 na RECHSTEINER 0 0 2 3 TOOMBS 0 0 3 1 HUFFMAN, HA 0 0 z 3 HUFFMAN, LA 0 0 1 3 TOTAL 22 7 14

"African-American

Putting in Your Time : Are African-American Wrestlers Treated

Equally?

'° This is using a one-tail test that assumes that there is an a priori reason to expect that African-Americans will be under-represented among those with elite salary status. Given the extreme under-representation of African- Americans in employmrnt among wrestlers, this expectation is warranted. If this assumption is rejected, lass than one chance them is in three that no African-Americans would be among the salaried elite.

16 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 168 of 296

It is impossible to test whether African-Americans spend more time than Caucasians waiting to achieve elite status since none have reached this status when it is defined as an annual salary of $750,000 . Time waiting in this context cannot be defined . To facilitate this analysis of waiting time, the definition of elite status is lowered to $600,000 so two

African-Americans are included among the elite .ll

Waiting time to elite status is defined as the number of years that a wrestler receives a salary before achieving elite .12 salary status For example, S . Borden received $72,205 in

1996 and achieved elite status a year later with a salary of

$913,304 . His waiting time is therefore recorded as one year .

Waiting time is defined for wrestlers who reached a salary exceeding $600,000 after 1996 in Exhibit A .1' The sign test

provides a way to investigate whether African-American wrestlers

spent more time waiting to achieve their elite status . If

African-Americans are treated equally it is expected that the

number of times they spend more time waiting for elite salary

status than Caucasians should be about equal to the number of

times they reach this status faster . In a sign test ties, i .e .,

Americans in employment among wrestlers, this expectation is warranted. IF this assumption is rejected, there is less than one chance in three that no African-Americans would be among the salaried elite. ~' They are B . Huffman and L. Huffman. ~' The salary data are found in Defendant's Exhibit A. Two wrestlers (T. Bollea and R Poffo) have elite status in the fiat year recorded in Exhibit A and are not included in this analysis because vvaiting time is unknown. " The status of seven wrestlers is disputed in this case and they are not included. In four of these seven cases, no salary statistics are shown in the Exhibit.

- 17 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 169 of 296 a

. . ~ = t

an equal number of years waiting, are excluded from the

analysis .

Table 5 shows all the wrestlers who earned at least

$600,000 after 1996, notes whether they are African-American,

and gives the number of years they received a salary before

reaching elite status, The African-Americans, B . Huffman and L .

Huffman, each waited three years before achieving $600,000

salary status . Among the 14 Caucasians reaching this salary

status, only Goldberg and Rechsteiner waited that long .

Comparing each Huffman with every Caucasian (eliminating ties)

shows that the Caucasians achieved this salary faster than the

African-Americans : subtracting the years African-Americans

waited from that of Caucasians yields 10 comparisons . The sign

is negative (i .e ., African Americans waited longer) in each

case . This is statistically significant with less than one

chance in 100 that this outcome could occur by chance alone .

H . Data Considered :

The data I considered is outlined in the prior section of

this report . I have also considered racial identification data

that was provided to me by Plaintiffs' counsel .

C . Exhibits to be Used :

(1) Defendant Universal Wrestling Corporation's Supplemental Responses and Objections to Plaintiffs' First Interrogatories to Defendants World Championship Wrestling, Inc . and Turner Sports, Inc . ;

- 18 - I L Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 170 of 296

(2) Demonstrative exhibits created with the data and opinions referenced herein .

D . Qualifications :

A copy of my resume was attached as Exhibit (B)(2)(a) to

Plaintiffs' Amended Supplemental Responses to Initial

Disclosures Providing Expert Disclosures Pursuant to Federal

Rule of Civil Procedure 26(a)(2) .

fi . Compensation :

I will bill Plaintiffs $200 .00 per hour for my time, and

$300 .00 per hour for any time testifying at deposition or at

trial

F . Other cases in which I have testified as an Expert at Trial or by Deposition within the Preceding Four (4) Years :

Curtis Major et al . v . Eller Media Company S .D . of Fla . (Miami Division) Case No . : 00-3870-CIV-MORENO (pending) (Report and deposition) .

Lemuel Middleton et all ., v . Publix Super Markets U .S .D .C . M .D . of Fla . (Tampa Division) Case No . : 97-760-CIV-T-25E (Report and deposition) .

Linden Adams et al ., v . He1lSouth Telecommunications, Inc . U .S .D .C . S .D . of Fla . Case No . : 96-2473-CIV-ZLACH (Report) .

Zaidy Gantt, et al . v . The Martin Brower Company U .S .D .C . S .D . of Fla . Case No . : 97-6233-CIV-ZLOCH (Testified) .

Additional Cases :

Dixon v . Coca Cola Bottling Co ., et al . , N .D . of Fla .

- 19 - + ~ L Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 171 of 296

Newton, et al . v . The Sherwin Williams Co . , W . D . of Kentucky

Walker v . Smith , TCA 79-895, N .D . of Fla .

Forehand v . Florida State Hospital , TCA 83-7107-WS, N .D . of F la .

Pollocks v . Sunland, TCA 87-90103, N .D . of Ela_

Worlds v . Sunland, TCA 77-0791, N .D, of Fla .

Winfield v . St . Joe Paper Co . , MCA 76-28, N .D . of Ela .

Griffin v . Wainright , TCA 79-1016, N .D . of Fla .

Nickyson v . City of Tallahassee , TCA 76-118, N .D . of Fla .

Dr . David W . Rasmussen

Plaintiffs specifically reserve the right to

supplement this disclosure in any manner permitted under

the Federal Rules of Civil Procedure, the Local Rules of

this Court or any other applicable law .

This l~day of November, 2002 .

Caty Ichter Georgia Bar No . 382515 Charles J. Gernazian Georgia Bar No . 291703 Michelle M . Rothenberg-Williamis Georgia Bar No . 615680

MEADOWS, ICHTER S BOWERS, P .C . Eight Piedmont Center, Suite 300 3525 Piedmont Road

- 20 - Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 172 of 296

Adr

Atlanta, GA 30305 Telephone : (404) 261-6020 . . Telecopy : ~ '~VY ; LO_-J070

- 21 - .. Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 173 of 296

CERTIFICATE OF SERVICE

This ,_'s to certify that I have this day served all

parties in the foregoing matter with the foregoing

Plaintiffs' Third Amended Supplemental Responses to Initial

Disclosures Providing Expert Disclosures Pursuant to

Federal Rule of Civil Procedure 26 (a)(2)(B) via hand

delivery properly addressed as follows :

John J . Dalton James Lamberth Evan Pontz Troutman Sanders LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, Georgia 30308-22165

This I Z day of November, 2002 .

M~'chelle M . Rothenberg-Williams

I Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 174 of 296

EXHIBIT / ATTACHMENT

L~ (fo be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 175 of 296

s ( fi<

IN THE UNITED STATES DISTRICT COURT ler k FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

BRUCE HARMAN, BERT SILVERMAN, DONALD GU"CSTEIN, and DENNIS RAL[N, Plaintiff, CIVIL ACTION FILE

v. NO. 1 :00-CV-3375-W BH LIFE UNIVERSITY, Defendant.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

Attached is the report and recommendation of the United States Magistrate

Judge made in this action in accordance with 28 U.S .C . § 636(b)(1) and this

Court's Local Rules LR 73 and LCrR 58.1 . Let the same be filed and a copy,

together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S .C. § 636(b)(1), each party may file written objections, if

any, to the report and recommendation within ten (10) days of the receipt of this

Order. Should objections be filed, they shall specify with particularity the alleged

error or errors made (including reference by page number to the transcript if

applicable) and shall be served upon the opposing party. The party filing

objections will be responsible for obtaining and tiling the transcript of any

evidentiary hearing for review by the district court . 1f no objections are filed, the

AO 72A (Rev .BI82)

n ...... r .. . yew .-.m . o.a .. .~. e~ ..s ~ rr u. . . :m:. ~.n Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 176 of 296

report and recommendation may be adopted as the opinion and order of the

district court and any appellate review of the factual findings will be limited to a

plain error review . United States v . Slav, 714 F.2d 1093 (11th Cir. 1983), cert.

denied , 464 U.S . 1050, 104 S. Ct . 729, 79 L. Ed . 2d 189 (1984 .

The clerk is directed to submit the report and recommendation with

objections, if any, to the district court after expiration of the above time period.

SO ORDERED, this day of DECEMBER, 2002 .

1/, n ,P ~L ~ C_IA7JF' .'j' F_ _K_INC_* /~ UNITED STATES iWAGISTRATE JUDGE

A0 7?A (Rev.ar82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 177 of 296

DEC n 3 202

;,~ i 1N THE UNITED STATES DISTRICT COUR"IByHEF ,;°r ePu~ Cl~fc FOR THE NORTHERN DISTRICT OF GEORGIA (~ ATLANTA DIVISION

BRUCE HARMAN, BERT SILVERMAN, DONALD GUTSTEIN, and DENNIS RALIN, Plaintiffs, CIVIL ACTION FILE

v. NO. 1 :00-CV-3375-WBH LIFE UNIVERSITY,

Defendant .

REPORT AND RECOMMENDATION

Plaintiff Bruce Harman, Bert Silverman, Donald Gutstein, and Dennis Ralin

filed this employment discrimination action against Defendant Life University on

December 19, 2000. [Doc. 11 . All four (4) Plaintiffs contend that Defendant

violated Title VIT of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S .C .

§ 2000e, etsea . , by discriminating against them in their employment and

subjecting them [o a hostile work environment on the basis of their religion,

Jewish. [Doc . 1] . Plaintiffs Gutstein and Ralin also assert that Defendant

discriminated against them on the basis of their age, in violation of the Age

Discrimination in Employment Act (°ADEA°), 29 U.S.C. § 623, seoet . , and Plaintiff

Harman alleges that he was terminated on the basis of his disability, in violation

of the Americans with Disabilities Act ("ADA"), 42 U.S .C . § 12101, et seu . (Id .J .

Finally, Plaintiff Ralin asserts state law claims of breach of contract and tortious

AO 77A (Rev-8W)

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interference with business relations, and Plaintiff Gutstein asserts a state law

claim of slander per se. [Id.].

Defendant Life University has filed a motion [Doc. 21] for summary judgment

on all of Plaintiffs' claims pursuant to Rule 56(b) of the Federal Rules of Civil

Procedure based upon the pleadings, statements of material facts, exhibits, and

discovery materials submitted by the parties.

I. Background Facts

When evaluating the merits of a motion for summary judgment, the court

must view the evidence and factual inferences in a light most favorable to the non-

moving party. See Rollins v. TechSouth. Inc ., 833 F.2d 1525, 1529 (l I`^ Cir.

1987) . However, unsupported self-serving statements by the party opposing

summary judgment are insufficient to avoid summary judgment. See Midwestern

Waffles. Inc. v . Waffle House . Inc . , 734 F.2d 705, 714 (11"' Cir. 1984) . Therefore,

the evidence presented by the parties having been evaluated in accordance with

the foregoing principles, the following (acts are deemed to be true for the limited

purpose of evaluating Defendant's motion [Doc . 21] for summary judgment .

Defendant Life University ("Life") is an institution of higher education located

in Marietta, Georgia, which offers undergraduate, master's and doctor of

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chiropractic programs.' Defendant's Statement of Material Facts ("DSMF") 1 1) .

All Life programs are accredited by the Southern Association of College and

Schools (`SACS"), and Life's doctor of chiropractic program is also accredited by

the Council of Chiropractic Education ("CCE") . [DSMF y 21 . Sid E. Williams is

Life's President and Founder. (DSMF 1 51. In this capacity, he has the final

authority on personnel decisions at Life University, including hiring, termination,

promotion, tenure, discipline, and policy development. Keith Asplin Dep. at 24-

26, 36, 40 ; Kim Williams Dep. at 46, 59-64, 118-251 . Williams' daughter, Kim

Williams, serves as presidential liaison and reports directly to Sid Williams . [Kim

Williams Dep. at 18,321. Keith Asplin, Vice President of Academic Affairs, testified

that Kim Williams frequently aces on behalf of the President. Asplin stated, "She

now interviews all the faculty and approves their hiring . . . 1, and] she signs for

Sid Williams] in the hiring process ." [Asplin Dep. at 301 . Asplin also testified that

his role as Vice President was limited to making recommendations which had to

be accepted or approved by Sid Williams. old. at 23-24].

'The facts as set forth herein pertain to the period of time relevant to the claims of the parties.

Kim Williams'title was changed to "assistant to the president for Executive Administration' in or around 1999 . Kim Williams Dep. at 32].

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!_s

A. Plaintiff Bruce Harman

Plaintiff Bruce Harman, who is Jewish, received a doctor of chiropractic

degree from Life in 1980 and was hired by Life in July of 1991 . JDSMF 1 41 . At the

time of Harman's hiring, Sid Williams and other Life officials knew that Harman

had back problems and was receiving disability insurance benefits. [DSMF 1 51 .

Plaintiff Harman was hired as a part-time adjunct professor in Chiropractic

Sciences in the summer of 1991 and became a full-time assistant professor in

September of 1991 . JDSMF 14 ; Harman Dep . at 106] . Harman served as Director

of Post Graduate Education from approximately October of 1992 to December of

,nn~ lu~r~. ., .., rte, .., ino nni v, . ..t ..._ .. ., .a ., r~e~ .._ . ....e~. r.. .. 177J . [A ia~~+u~a arc N. at ~va~-vvJ . iic also acivcu no Department lea'a~c,nu IV

Chiropractic Technique from approximately April of 1997 to March of 1998 . II.

at 109]. Harman testified that he applied for tenure in January of 1997, but he

was informed by Keith Asplin, Vice President of Academic Affairs, in June of 1999

that no action had been taken on his tenure application at that time. [Id. at 107 .

In a letter dated May 25, 1995, Sid Williams wrote Plaintiff Harman a letter

which stated the following:

Dear B.J . : 1 called you at home but could not find you. I understand you had a little surgery. I conducted a D. E. one time four days after I broke every bone in my foot. You can sit in a chair and conduct class. I provided the leadership by doing the D. E. with a crushed foot; you can use a wheelchair if needed . Is this hard nosed or what? Jews don't have pain like ordinary people . Hope you are feeling

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better. 1 know there is really nothing wrong with you! Love you, Baby!

(Defendant's Exhibit ("Def. Ex.") 59AJ . Approximately a year later, on May 9, 1996,

Sid Williams wrote another letter to Plaintiff Harman which read, in part:

Your most recent letter was received in Sarasota. I cannot imagine a New York Jew being disturbed by John Hopkins . I can imagine a New York Jew being irritated . Hopkins has done a great job on this project. The word is nut that he is on the prowl and attendance by the faculty has gone from 17 absences last Tuesday to almost zero this week. . . .

IDef. Ex. 60J . Harman also received numerous letters from Williams throughout

his employment with Life which were positive, supportive, and favorable . In many

.,of. these_. ._ .. ., letters._ .__ ._ , Williams rvnrrscr~i oraHhvie tnwarrl Plaintiff Harman . IHarman

Dep. at 260-64; Def. Exs. 36, 37, 44, 51, 66, 701.

Plaintiff Harman testified that during several assemblies and faculty

meetings, Williams would refer to individuals as "New York Jews." [Harman Dep.

at 1591 . At his deposition, Harman was asked, "Tell me more specifically who he

referred to as a New York Jew." In response, Harman testified:

He referred to Dr. Ron Schneltzer, who is a chiropractor from New York. He referred to Dr. Bob Rabin at one time as a southern redneck New York Jew. He made a remark about Dr. Michael Rappaport, saying that he is from Israel. I don't recall the exact terminology that he used . The doctor was talking about arms and a certain chiropractic technique, that Dr . [Mike] Rappaport has short arms but that because he is from Israel he doesn't need his arms to count the money, that he uses a calculator in his head.

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[Harman Dep. at 159-60]. Harman believed that Williams made these comments

in 1998 or 1999. jId . at 161-62j. Plaintiff Harman also testified that around 1992

or 1993, he and Harvey Fish "would usually sit together in assemblies, and Dr.

Williams would refer to [them] as his New York Jews." [Harman Dep. at 236-371 .

In January of 1999, Harman requested a transfer to the clinic because of his

back problems . Life granted Harman's request and assigned him to the clinic as

a full-time faculty clinic doctor beginning in the sprang of 1999 . [DSMF 1 9] .

Clinic faculty doctors oversee patient care, conduct case management reviews with

students, teach classes in the clinic, and meet with advisees. [DSMF 1 101 . They

also assess students' skill levels, determine whether students are making

satisfactory progress toward completing clinical requirements, conduct competency

evaluations, and, on a one-on-one basis, create a faculty model of chiropractic care

for students. [Id.J. Harman worked as a full-time clinic doctor during the spring

and summer quarters of 1999. JDSMF 1 131 . On September 24, 1999, six (6)

months after he transferred to the clinic, Harman took twelve (12) weeks of leave

under the Family and Medical Leave Act (°FMLA') because of his back problems.

[DSMF' 141. Harman's request for FMLA leave was supported by a letter and

certification dated September 24, 1999, from Alan Maloon, his neurologist, who

certified that Harman was "unable to perform work of any kind because of a

serious health condition ." [Maloon Dep. at 31-33 ; Def. Ex. 1411 . MaJoon also

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indicated that there were no accommodations that would enable him to perform

the essential functions of his job at that time . IMaloon Dep. at 32; Def. Ex. 141 .

While Harman was out of work on FMLA leave, he sold services and products

for Now You Know, Inc., a chiropractic related business owned by his wife,

Jacqueline Harman, and two (2) friends, Robert Braile and Steve Szabo. Harman

Dep. at 54, 60-64, 81J . Now You Know was started in September of 1998 and

incorporated in July of 1999. [Harman Dep . at 54, 811. Braile owns fifty (50)

percent of Now You Know, Szabo owns twenty-five (25) percent, and Jacqueline

Harman owns twenty-five (25) percent. Harman Dep. at 811 . Plaintiff Harman

testified that he seen[ apnrpximately fifteen (151 to twenty 1?nl hniirc rP_r wr_g_k_

doing research and selling services for Now You Know throughout his FMLA leave .

Harman Dep. at 52-54, 59-64, 72-74, 78-82J. Harman took trips to Detroit in

October of 1999, to Orlando and Davenport, Iowa in December of 1999, and to Las

Vegas in January of 2000, while selling services for Now You Know. Plaintiff

Harman testified that Now You Know paid for his trips, but he did not receive any

compensation for selling the company's services. (L.

Toward the end of his FMLA leave, Harman informed Life that he could not

return to his full-time position in the clinic a[ that time, and he asked Life to give

him a pan-time position, working two (2) days a week, six (6) hours a day, upon

the expiration of his FMLA leave on January 4, 2000. [DSMF 1 23] . Harman

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testified that his supervisor, Steven Mirtschink, told him that "there would be no

part-time schedule available" for him and that he should direct any further

communication to Deborah Pogrelis, Chief of Staff of Clinics. [Harman Dep. at

131-32, 275-76J. In a letter dated January 3, 2000, Pogrelis wrote Plaintiff

Harman and informed him, "in response to your request of December 22, 1999

there is no possible accommodation available in the clinics. However, 1 will

forward your request up my chain of command to Dr. [Ron] Kirk," Dean of the

School of Chiropractic. tDef. Ex . 1131 . Kirk wrote Plaintiff Harman a letter dated

January 4, 2000, the day Harman's FMLA leave expired, which stated, "There are

currently nn part-time faculty positions available in the School of Chiropractic."

IDef. Ex. 114 ; DSMF 1 27].

Three (3) weeks later, on January 25, 2000, Plaintiff Harman filed a charge

of discrimination with the Equal Employment Opportunity Commission ("EEOC").

jDSMF , 311. Harman checked the boxes marked "religion," "retaliation,"

"disability," and "other." (Def. Ex. 117]. In an attachment to the charge, Harman

wrote that he believed that Life University had discriminated against him on the

basis of his disability, degenerative back disease, in violation of [he Americans with

Disabilities Act ("ADA"), and on the basis of his religion, Jewish . [Id.] . He also

stated his belief that Lice had violated the FMLA and that it had retaliated against

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him for his "request for accommodation under the FMLA and the ADA." lid.]. On

March 1, 2000, Life terminated Harman's employment . [DSMF 1 291 .

B. Plaintiff Bert Silverman

Plaintiff Bert Silverman, a Jewish male, interviewed for a job at Life

University in November of 1996 with Sid Williams and several Life faculty members

and administrators . IDSMF 136] . Silverman testified that, during this interview,

Williams said that Silverman would like Life because there were many Jews there.

IDSMF 1 37] . Silverman found Williams' comment offensive and insulting, but

when Williams offered him an associate professor position in the Department of

RinchemisW . Silverman accented the position and beean working (or Life in

December of 1996. IDSMF' 391 .

Silverman testified that he heard Sid Williams use the phrase 'New York

Jews . . . at least a dozen tunes from 1997 to 1999, referring to faculty, land] to

chiropractors who are not at Life. . . .° [Silver-man Dep. at 104] . Silverman stated

that Williams referred to Mike Rappaport as a "New York Jew with short arms . .

that Rappaport's short arms were okay to be used for running a calculator,

running an adding machine, and counting his damn money." (Id. at 301 .

Silverman also testified, "[Wlhat 1 remember as a continuum, as a blur, is Sid

referring to Bob Rabin as a New York Jew." II. at 104-05J .

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Samuel Demons, Chair of the Basic Sciences Division where Silverman

worked, testified that in 1999, he was informed that he needed to reduce the

number of faculty members in the division. [Demons Dep. at 57-59J. Ron Kirk,

Dean of the School of Chiropractic, gave this instruction to Demons. IId .].

Demons testified that he and Kirk met with other division chairs and department

heads in the School of Chiropractic to discuss criteria which should be used in

selecting which professors would be laid off. Demons Dep. at 58-62, 98-991 .

Factors considered were longevity, performance reviews by staff and students,

negative disciplinary actions, loyalty, and educational background. [Id.]. Demons

asked iii department ::I-.°.S..^ . .^...... °:1d :.^. him .qh0 SF :OUIrVI }w t_r_(jnjnatP_!j, (N .

at 62].

Demons testified that Tom Iha, the Chair of the Biochemistry Department

at that time, initially recommended to Demons that Henry Zeidan, another faculty

member in the department, be terminated . Demons Dep. at 651 . Demons,

however, stated that he rejected the selection of Zeidan because he was concerned

that Iha was basing his recommendation on his personal animosity toward Zeidan .

Demons Dep. at 65, 69-80j . Demons determined that Silverman should be

terminated instead . lid . at 98-99]. Demons then submitted Silverman's name to

Keith Asplin, Vice President of Academic Affairs, who then submitted the list of

faculty recommended for termination to Williams for his approval. [DSMF 1 471 .

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Plaintiff Silverman's employment with Lice University was terminated on September

30, 1999 . [Asplin Dep. at 127-28; Silverman Dep, at 155]. On March 14, 2000,

Silver-man filed a charge of discrimination with the EEOC alleging that he was

discriminated against on the basis of his religion and that he was subjected to a

religiously hostile work environment. [DSMF 1 49; DeG Ex . 22].

C. Plaintiff Donald Gutstein

Plaintiff Donald Gutstein is a sixty-nine (69) year old Jewish male who first

visited Life University in 1994 or 1995. IDSMF' 551 . During this visit, Gutstein

heard Sid Williams give a speech in which Williams referred to a group of people

with whom Gutstein was sitting as "New York Jews ." fld .l. Gutstein testified that

Williams also "made disparaging remarks about [Tom Oliver], that he looked like

a faggot, and then made fun of his age ." [Gutstein Dep. at 751 .

Al though Gutstein now says that he was offended, humiliated, demeaned

and hurt by these comments, immediately after the visit, he wrote a letter to

Williams and applied for a J y 56]. The letter, dated April 16, 1995, read

in pertinent part:

1 have heard about you, D.E. and Life College for years now. Experiencing, for myself, this unity is something words cannot describe. I was thunderstruck, where had 1 been all these years. . Being in Marietta felt like 1 had come home. I want to thank you all for what you are doing for all of us, not just for chiropractors, but for all people .

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Over the years, students of mine, have been telling me that I belonged at Life College. Now, I know they were right. It isn't just the college, it's your vision that is so exciting. What you are able to conceptualize and accomplish is mind boggling; it's never been done in such a grand scale before . I have been teaching for thirty five years and in continuous practice for thirty four years. Time does 11y. 1 am enclosing a C.V. which tells you some of the things 1 have been doing all these years. It is by no means complete but is fairly representative of my career. If you feel that there is a place for me at Life College, 1 would love to talk with you about the possibilities.

[DeC. Ex. 1211. In December of 1995, Life hired Gutstein as Chair of the Physiology

Department. He was sixty-two (62) years old at the time. [DSMF 157] .

On November 12, 1996, Lite promoted Gutstein to Associate Academic Dean .

ITIRMFI 5R1 Thr ._fn11nunnovPar. . ._a~__, in ilrrrm~tnrnf. ._ 1QQ7 Ulill~ome nroim`7 (1fcfai' .'c .__ ~ _~ . ____ . ._ _.____ . .. . ., .~~ . , ...... ~ ...... , ...... ~ .., .., .. . ..

teaching: "You should have more, much more. You area good teacher." [DSMF

1 59] .

In August of 1998, after the resignation of his supervisor, Academic Dean

Karen Martucci, Gutstein returned to full-time teaching in the Physiology

Department. JDSMF 1601 . Gutstein testified that he left the Office of Academic

Affairs and returned to teaching because of his fear that he would be fired due to

his association with Martucci. [Gutstein Dep. II at 4-5] . He believed that "Kim

Williams (presidential liaisons despised Karen Martucci° and that "It]here was a

vendetta going on between then dean James Brown and Karen Martucci ." [Id. at

5] . Gutstein further testified, "I also knew, because of remarks that were made by

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Dr . Williams, that he considered that whole office to be problematic, and, therefore,

i all of a sudden became one of the enemies because I was in that office, and so I

was frightened that they might get rid of me as well.' iId.] .

In the fall of 1999, Keith Asplin, at the direction of Williams, instituted an

assessment of all faculty to make sure their credentials were in compliance with

SACS and CCE criteria . (DSMF 161 ; Plaintiff's Response to ("Pla . Resp.") DSMF

1 61 ; Asplin Dep . at 154 . An initial evaluation by Kim Williams indicated that

Gutstein did not have the requisite hours to teach physiology . [Asplin Dep. at 154-

55] . Asplin testified, "When that decision was made 1 met with Sam Demons and

said this doesn't make sensed 1 rinn't knnw _h_nur f_hig was added up F_uif_ T_ want a_

review of all the course work that [Gutstein] had taken, much of which was called

nutrition . But in the analysis of those courses we viewed that many of them were

specifically physiology, and when you credited those courses as physiology, . . . it

was determined that he had enough course work to be teaching physiology."

(Asplin Dep. at 155] . Asplin further testified that when the analysis of Gutstein's

credentials was completed, he `attended a SACS meeting at which point SACS

defined all professional programs as graduate level programs." [Id. at 155-561 . As

a result, lead instructors in Basic Science courses in professional programs, such

as Life's Doctor of Chiropractic program, would be required to hold a Ph.D . [Id .] .

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Under the newly-defined SACS requirement, teachers in all of the Basic

Science courses in the School of Chiropractic, including anatomy, physiology,

biochemistry, psychology, and nutrition, were required to have a Ph.D . [Asplin

Dep. at 85-86] . Lab instructor positions, however, did not require a Ph.D. [La.

According to Asplin, Gutstein was not qualified to teach physiology after the SACS

change in accreditation requirements, but he could teach some of the courses in

the Doctor of Chiropractic curriculum. II. at 85-87] . Asplin testified, "For

(Gutstein] to have been reassigned to a different course would have meant

someone else had to be terminated, and that decision wasn't made." [Asplin Dep.

at 1571 .

Florence Rigby, a faculty member in the Physiology Department, testified,

"Dr. Demons made an attempt to find additional hours for IGutsteinj in other

divisions and said the other division chairs were unwilling to provide anything.'

(Rigby Dep. at 231 . Rigby also testified, however, that Matt Williams, head of

Clinical Sciences, stated in a curriculum meeting that "he would only employ

[Gutstein] with direct orders from the higher administration.' lid.]. Wayne

Menkus, head of the Physiology Department, testified that Demons informed him

that the number of hours that Gutstein was scheduled to teach was not Demons'

decision . [Menkus Dep. at 291 . Deborah Pogrelis, Chief of Staff of Clinics, testified

that the CCE standards say that "any doctor that is appointed to a clinic faculty

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position who is involved in supervising students delivering patient care must be

licensed in the state where the institution is domiciled.' [Pogrelis Dep. at 701 .

Because Gutstein did not have the requisite Georgia chiropractic license and

refused to obtain one, he was not permitted to teach in the School of Chiropractic .

[DSMF 169; Pla. Resp. DSMF 169] .

Gutstein testified that Sam Demons and Kim Williams told students that

Gutstein was not qualified to teach when they asked Demons about the topic

during a meeting on November 9, 1999 . (DSMF' 79; Gutstein Dep. 1l at 56) . The

minutes of that meeting were posted by students on a student bulletin board . (Id.] .

On January 11, 2000 . Gutstein's hours were reduced from full-time to hart-time .

[DSMF 1 70; Pla. Resp. DSMF q 70; Gutstein Dep. 1i at 115]. Gutstein filed a

charge of discrimination with the EEOC on January 25, 2000. (DSMF 1 71 ; Pla.

Resp . DSMF 171 1. By the spring or summer of 2001, his hours had dwindled to

zero, and his employment with Life ended. [DSMF 170; Pla . Resp. DSMF 1 701 .

Plaintiff Gutstein contends that after a meeting which took place between

7996 and 1998, he heard Kim Williams mutter under her breath that Gutstein was

an abrasive New York Jew. [Gutstein Dep. 11 at 12-131 . He also testified that he

heard Sid Williams say, "The problem with him is he doesn't answer any questions .

He answers questions by asking a question just like a Jew." [l. at 63-64J.

Gutstein did not know to whom Williams was referring. [id.l . Plaintiff Gutstein

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also testified about Williams' comment about Mike Rappaport being a New York

Jew with short arms, about Williams'repeated references to "Bob Rabin as a New

York Jew, a red neck New York Jew, a red neck New York Jew with white socks,"

and about Williams' numerous comments about "New York Jews" at orientations,

assemblies and faculty meetings. [Id. at 12-13, 17, 30, 63-64] . Gutstein, however,

was never singled out by Williams as Jewish. IDSMF 1 741 .

Plaintiff Gutstein also contends that he heard numerous age-related

comments. Although Sid Williams is five (5) years older than Gutstein, Gutstein

testified that at least ten (10) times Williams referred to him as "old Gutstein,"

mnL~~ n ~~O ~l~/P ~~ ~/PPf/l~l~ n/' ~77~CtP\T ~1P'P S1PlOl~CP ~lP TOYPC TP ~llll~ uau.u s Wuua .uW u .~Y vu v . ~avw .v rv~ vv .uu~ . u . uu~v u . vv

young by comparison ." [Gutstein Dep. li at 18] . According to Gutstein, on at least

six (6) occasions, Williams joked about the age of Tom Oliver at faculty meetings

and assemblies and made comments about the age of Ron Roland, director of Life's

senior adult program. lid . at 18-21]. Gutstein tested that Williams also

commented about the age of Edie Dahlhauser: "}ie was making remarks about her

age at a student assembly, and from her age he went on to the number of children

she had, then from the number of children she had he went on to remark that they

looked so different that he had questions about who was their father, in effect

calling them bastards." [Gutstein Dep. 11 at 19] .

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D. Plaintiff Dennis Ralin

Plaintiff Dennis Ralin, who is Jewish, holds a Ph.D. in zoology. [DSMF 1 801.

Life University hired Ralin as an associate professor in its Natural Sciences

Department in 1990. [DSMF 1 811 . Life promoted Ralin to Chairman of

Undergraduate Admissions in 1991 or 1992 and to full professor in 1996. [DSMF

1831 . Ralin was also promoted to Chairman of the Biology Department in 1997 .

When the Biology, Physics and Chemistry Departments were consolidated into one

department, Natural Sciences, Ralin was named Department Chair. [DSMF 1 831 .

Ralin testified that he heard Sid Williams refer to Williams' $on-in-law as a

unt .. .1, .. .. :.. Ie ..P ..t .. i'...- . . lt. . ...vet ; .. .. : 1 000 .,~ 1004 fAolin Ilar ~t `)A-0~1 rill,:1 QUC.~/Fl ~llQ VIEW 4l 4 1PVWl~ /~~,l .Uls L% 1 11+ v~ ~+ . ~auv "" uvY . w . r ~v~ .

At a meeting in April of 1998, Williams referred to Ralin as "Old Gray Beard' or

"Gray Beard" numerous times. jId . at 132-331 . Ralin also stated that he heard

Williams make comments during 1999 faculty meetings about Bob Rabin being a

"New York Jew" and about Mike Rappaport having short arms, "but long enough

to reach the cash register." [Id . at 25-301.

In the tall of 1999, Keith Asplin, Vice President of Academic Affairs, notified

Mamie Ware, Dean of the School of Arts and Sciences, that he was moving Michael

Hoefer out of the Academic Affairs office and back to the Natural Sciences

Department. JDSMF 1 841 . Asplin informed Ware that she needed to create a

schedule for Hoefer and noted that Hoefer's schedule might impact other faculty

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members. Ware Dep. at 58-53, 78]. Ware testified, "What Dr. Asplin asked me

for was to make a schedule for Dr. Hoefer. I made a schedule for Dr. HoeCer. After

I made a schedule for Dr . Hoefer, I did not have a schedule for Dr. Ralin. I

informed Dr . Asplin that I did not have a teaching schedule for Dr. Ralin, and

that's what I gave to Dr. Asplin." [id . at 781 . Prior to this time, Ralin had been

teaching biology courses in the undergraduate school, and Hoefer was only

qualified to teach biology . Ware Dep. at 79-80] . Ware also testified that while

Asplin did not explicitly use Ralin's name, it was Asp3in who made the decision to

cut the teaching hours of Plaintiff Ralin instead of the hours of Scott Carpenter,

~ f~riiltv mvmhvr scheduled to teach hinlnw nr CanHra flavirlcnn the flrnartmrnt

Chair. Ware Dep . at 81-84] .

According to Ware, after she turned in the teaching schedule which did not

include any classes for Plaintiff Ralin, Asplin sent a letter to Ralin informing him

that his employment with Life was terminated . Ware Dep. at 91-921 . Asplin

originally sent Ralin a letter dated December 10, 1999, stating that his termination

would be effective January 9, 2000. [De(. Ex . 91] . The letter served as Plaintiff

Ralin's thirty (30) days' notice . II.]. According to Ralin, when he received the

letter, he called Asplin on December 13, 1999, and Asplin asked him to come in

to the office that day because Asplin had a plan that would be to Ralin's benefit.

[Ralin Dep. at 68) .

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Ralin met with Asplin that day. [Ralin Dep. at 68-74j . He testified that

during the meeting, "[Asplinj said that instead of working an additional 30 days,

that they wanted me paid off immediately and would have a check ready for me

this afternoon . They wanted me of( campus immediately." (Ralin Dep. at 69] .

When Ralin was asked to whom Asplin was referring when he used the term "they,'

Ralin testified that he assumed Asplin was talking about Sid and Kim Williams.

[Ralin Dep . at 71-73J . Asplin also had told Ralin that "they will be in Florida next

week," and Ralin knew that the Williamses "have a place in Florida ." [Ralin Dep.

at 731. During the meeting, Aspiin gave Ralin another letter, [his one dated

December 13, 1999, which provided that nnim'S icr:..:..at'.:.R was .°,~~~r.:`!°

immediately . The letter also read, in part, "in lieu of thirty - (30) calendar days'

notice, as provided in your Appointment letter, you will be paid thirty - (30)

calendar days' salary ." [Def. Ex. 92]. Ralin testified, "JAsplinj told me that he

didn't know about this [Ralin's termination] until Thursday, which would have

been the 9'" of December. (Ralin Dep. at 71-721 .

Ware testified that she did not know why Ralin was terminated. Ware Dep.

at 761. Ware recommended Ralin for a teaching position in the Cobb County

School System. [DSMF1921. Ralin taught as a substitute in the Marietta City

Schools and, in August 2000, began working full-time for the Gilmer County

School System at a salary of $57,000 per year, $15,000 more per year than his Life

AO 72A (Rev.BIB2) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 196 of 296

salary. [DSMF 1 931 . On March 14, 2000, Plaintiff Ralin filed a charge of

discrimination with the EEOC, contending that he had been discriminated against

because of his religion, Judaism, and his age, fifty-five (SS). [Def. Ex. 99J. He also

asserted that he had been subjected to a religiously hostile work environment.

[Id.] .

Additional facts will be set forth below as they become necessary for

discussion of Plaintiffs' claims .

II. Summary Judgment Standard

The court should grant a motion for summary judgment where there is no

OFr1771f1P ICRIIP AR Fn anv material (act and the movino nartv is entitled to iudument

as a matter of law. See Fed. R. Civ. P. 56. The movant carries his burden by

showing the court that there is "an absence of evidence to support the nonmoving

party's case ." Celotex Corp. v. Catrett, 477 U.S. 317, 325,106 S. Ct. 2548, 2554,

91 L. Ed . 2d 265 (1986). "Only when that burden has been met does the burden

shift to the non-moving party to demonstrate that there is indeed a material issue

of fact that precludes summary judgment." Clark v. Coats 8s Clark, inc ., 929 F.2d

604, 608 (11'h Cir. 1991 . The nonmovant is then required "to go beyond the

pleadings' and present competent evidence in the form of affidavits, depositions,

admissions and the like, designating "specific facts showing that there is a genuine

issue for trial ." Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 . Generally, °[t]he

AO 72A (Rev.8/82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 197 of 296

mere existence of a scintilla of evidence" supporting the nonmovant's case is

insufficient to defeat a motion for summary judgment. Anderson v . Liberty Lobby.

Inc., 477 U.S . 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986) . Resolving

all doubts in favor of the nonmoving party, the court must determine "whether a

fair-minded jury could return a verdict for the plaintiff on the evidence presented ."

Id .

III. Discussion

All four (4) Plaintiffs, Bruce Harman, Bert Silver-man, Donald Gutstein, and

Dennis Ralin, contend that Defendant Life University subjected them to a hostile

work environment on the basis of their relieion . Jewish, in violation o! Title VII .

[Doc. 1 at 17-19] . in addition, Plaintiff Harman contends that he was terminated

on the basis of his religion, in violation of Title VII, and on the basis of his

disability, in violation of the ADA. old. at 15-17,22-23] . Plaintiff Silverman argues

that he was terminated on the basis of his religion. (Id . at 15-17J . Plaintiff

Gutstein argues that he was demoted from full-time to part-time and eventually

given no teaching hours on the basis of his religion and his age, in violation of Title

VIl and the ADEA respectively. IIi. at 15-17, 19-211 . He also asserts a state law

claim of slander per se. did. at 27-29J . Plaintiff Ralin claims that he was

terminated on the basis of his religion and his age, in violation of Title VII and the

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AREA, and he asserts state law claims of breach of contract and tortious

interference with business relations. (Id. at 15-17, 19-21, 24-27j .

A. Religiously Hostile Work Environment

Title VII makes it unlawful for an employer "to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion, sex, or national

origin." 42 U.S .C. § 2000e-2(a)(1) . In the present case, all of the Plaintiffs allege

that they were discriminated against on the basis of their religion when they were

subjected to a religiously hostile work environment while working at Life

II ...' . . 'k . Ay .Y 11 InrAr~~_J - ~ ul~~rrj in~fnrtr r~n rli~y~ rt rP Ci flYc in a hncFi]P Wn~~f

environment when it is "so severe or pervasive that it create[s] a work environment

abusive to employees because of their race, gender, religion or national origin ."

Harris v. Forklift Systems. Inc. , 510 U.S. 17, 22, 114 S. Ct. 367, 371, 126 L. Ed.

2d 295 (1993) . To establish a prima facie case of hostile work environment

harassment based on religion, Plaintiffs must show the following: (1) they belong

to a protected group; (2) they were subjected to unwelcome harassment; (3) the

harassment was based upon their religion; (4) the harassment affected a term,

condition or privilege of their employment; and (5) a basis for holding Defendant

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! !

liable.' See Henson v. City of Dundee , 682 F.2d 897,903-05 (11"Cir. 1982) ; Elis

v. Wal-Mart Stores. Inc. , 952 F. Supp. 1513, 1518 (M.D. Ala. 1996). Because

Plaintiffs are Jewish and were subjected to unwelcome comments about their

religion, the only elements in question are the last two (2) . Like the majority of

cases, the most significant and most contested element in this case is the fourth

one: whether the conduct Plaintiffs complain of was severe enough to affect a term,

condition or privilege of their employment.

For harassment to be actionable under Title V11, it "must be both objectively

and subjectively offensive, one that a reasonable person would rind hostile or

abusive, and one that the V1CiliI1 111 iitCi did perceive to be so ." Farapher v . City of

Boca Raton , 524 U.S. 775, 787, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662 (1998) .

In determining whether the complained of harassment was sufficiently hostile or

abusive to affect a term, condition or privilege of employment, courts are to look

at all the circumstances, including the frequency and severity of the conduct. See

id. Courts should also look at whether the conduct is "physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance.' Id. The Supreme Court has made it clear

that Title VII is not a "general civility code ." Oncale v. Sundowner Offshore

In Defendant Life's summaryjudgment motion, the University addresses all of the Plaintiffs' hostile work environment claims in a single discussion . [Doc. 21 at 36-401 . The court will do the same .

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Services. Inc. , 523 U.S . 75, 77-79, 118 S. Ct . 998, 1000-02, 140 L. Ed . 2d . 201

(1998) . "'(SJimple teasing,' offhand comments, and isolated incidents (unless

extremely serious)" will not amount to a hostile work environment. Faragher, 524

U.S. at 788, 118 S. CL. at 2283 (citations omitted).

Plaintiffs allege that the following support their claim of a religiously hostile

work environment: (1) comments made by Sid Williams in 1992 or 1993 during

assemblies and faculty meetings in which he referred to Plaintiff Harman and

Harvey Fish as "his New York Jews"and to Williams' son-in-law as a "Philadelphia

Jew" Harman Dep. at 236-37 ; Ralin Dep. at 24-251 ; (2) Williams' letter to Plaintiff

1-l .0...... 191 OS whjrh stated in Yarf --T P . .S d o- 0 have Yw ;;~ 1iLPn,rrvli no >~ pao YIP°

[Def. Ex. 59A] ; (3) a reference by Williams to a group of people as "New York Jews"

in a speech made in 1994 or 1995 JDSMF 1 551 ; (4) Williams' letter to Plaintiff

Harman in 1996 stating, in part, "I can imagine a New York Jew being irritated"

(Def. Ex . 60] ; (5) Williams'statement to Plaintiff Silverman that he would like Life

because there were so many Jews there [DSMF 137] ; (6) Kim Williams muttering

that Plaintiff Gutstein was an abrasive New York Jew after a meeting sometime

between 1996 and 1998 [Gutstein Dep. II at 12-131 ; (7) Sid Williams' statement

within earshot of Gutstein [hat an unidentified person "answers questions by

asking a question just like a Jew IGutstein Dep. ii at 63-64] ; (8) Williams stating

in a 1999 faculty meeting that Michael Rappaport was a "New York Jew with short

A0 77A (Rev .aW) i Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 201 of 296

arms" [Ralin Dep. at 25-30]; (9) Williams' use of"New York Jeer' more than a dozen

times from 1997 to 1999 when referring to Life faculty and chiropractors not at Life

(Harman Dep. at 159-60; Silverman Dep. at 104-05J; and (10) Williams'repeated

references to Bob Rabin as a "New York Jew" or "a red neck New York Jew"

[Gutstein Dep. II at 12-13, 17, 30, 63-64J .

The court finds that these incidents are sufficiently severe to allow Plaintiffs

religiously hostile work environment claims to survive summary judgment. As

noted supra, one of the factors that courts are to consider is the frequency of the

conduct. See Fara her, 524 U.S. a1787, 118 S . CL. at 2283 . Here, the commenEs

made preu'uniinarauly by Solid 'W"IIIIa11lJ occurred with 7a°.guiuia J. ~^,.. ;;u r (n) o! Win r,:rrs

testified that Williams referred to people as New York Jews dozens of times during

faculty meetings, assemblies and private meetings. The fact that so many of these

references occurred in public caused Plaintiffs a great deal of humiliation, which

is another factor that must be taken into account. See Edwards v. Wallace

Community College, 49 F.3d 1517, 1521 (I1'" Cir. 1995) .

Williams' statement in a letter to Harman that "Jews don't have pain like

ordinary people" and his numerous references to "Bob Rabin as a New York Jew,

a red neck New York Jew, [and] a red neck New York Jew with white socks" are

offensive, anti-Semitic and, quite frankly, bizarre. [Gutstein Dep. If at 12-13, 17,

30, 63-64 ; Def. Ex. 59A] . His comment to Rappaport during a 1999 faculty

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meeting, which all of the Plaintiffs attended, is particularly appalling . Plaintiff

Silver-man testified that Williams caged Rappaport a "New York Jew with short

arms . . . that Rappaport's short arms were okay to be used for running a

calculator, running an adding machine, and counting his damn money.'

[Silverman Dep. at 301 . Plaintiff Ralin described the same incident, saying, "Well,

lWilliams] was malting fun of Dr. Rappaport's short arms, having arms

disproportionately short, 1 understand, because he had polio or something when

he was a kid or. . . . And he was making fun of his arms, he said, but long enough

to reach the cash register." [Ralin Dep . at 271. The court concludes that a jury

~~ c ~ ~_ . t_,_ a C,. .,. . . .7 .. a l.Vl1lU 111111 ll1Ql these commentsmeliJ and lG1WClICcJ, lllduc over ailu over again, are

more than just `simple teasing' and "offhand comments ." Faragher, 524 U.S. at

788, 718 S . C[. at 2283. They certainly were not isolated. Id. By offering evidence

showing that [he religious harassment affected a term, condition or privilege of

Plaintiffs' employment, they have satisfied the fourth prima facie element.

The final prima jade element requires Plaintiffs to show that there is a basis

for holding Defendant liable. In Harris v . Forklift Systems. Inc. , supra, as the

Supreme Court noted in Farms, "the individual charged with creating the

abusive atmosphere was the president of the corporate employer, who was

indisputably within that class of an employer organization's officials who may be

treated as the organization's proxy.' Faragher, 524 U.S . at 789, 118 S. Ct. at

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2284 . For this reason, "standards for binding the employer were not in issue in

Harris." Id. The same is true in the present case where the person making the

harassing comments, Sid Williams, was Life University's President and Founder.

Because there is no question that Williams held a position high enough in the

University's hierarchy to impute his actions to the employer, Plaintiffs are able to

establish the final prima facieelement of their religiously hostile work environment

claims. See id. at 789-90, 118 S. Ct. at 2284-85.

Defendant uses a paragraph to explain that "Plaintiffs did not complain or

follow [he procedures contained in Life's non-discrimination policies." (Doc . 21 at

39-4()1 . However, L'f1C University [ItdiiCS i1V eipu~Ti2ni as to how '"his is relevant tO

its summary judgment motion. Presumably, Defendant cites Plaintiffs' failure to

complain as evidence that the University can assert [he two (2) part affirmative

defense established by the Faragher court. The two (2) elements are : "(a) that the

employer exercised reasonable care to prevent and correct promptly any . . .

harassing behavior, and (b) that the plaintiff unreasonably (ailed to take advantage

of any preventative or corrective opportunities provided by the employer or to avoid

harm otherwise." Id. at 807, 118 S. Ct. at 2293. The court finds, however, that

the Fara¢her affirmative defense is inapplicable in the present case and that

Plaintitfs'alleged failure to complain about Williams is not relevant to their claims .

As the Eleventh Circuit has noted, "[A]n employer can be held vicariously liable for

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a supervisor's sexual" harassment . . . [when the supervisor holds such a high

position in the company that he could be considered the employer's 'alter ego .'

Dees v . Johnson Controls World Services. Inc. , 168 F.3d 417, 421-22 (11`" Cir.

1999). In those instances, the affirmative defense does not apply. Id. Sid

Williams' position as President of Life is certainly high enough to be considered the

University's alter ego .

For all these reasons, the court finds that Plaintiffs are able to establish a

prima facie case of a religiously hostile work environment. Because the Faragher

affirmative defense is inapplicable, it is RECOMMENDED that Defendant's

summary judgment motion [Doc. 21J be DENIED on this claim.

B. Religious Discrimination is Terminations and Demotion

All (our (4) Plaintiffs contend that they were subjected to adverse

employment actions on the basis of their religion in violation of Title VII . According

to Plaintiffs, Defendant Life University demoted Gutstein and terminated the

employment of Harman, Silverman and Ralin on the basis of Plaintiffs' religion,

Jewish . [Doc_ 1] .

'Most of the cases discussing the issue of hostile work environment have involved claims of sexual harassment, but the same standards apply to harassment based on race, national origin, age and religion. See De(fenbaueh v. Wal-Mart Stores, Inc. , 156 F.3d 581, 592-93 (5'' Cir . 1998); Wright-Simmons v. The City of Oklahoma Cites , 115 F.3d 1264, 1270 (10"' Cir. 1998); Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481, 491 (S.D . N.Y. 1998) .

A0 72A (Rer.&82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 205 of 296

-!s -

In a disparate treatment action, the plaintiff carries the burden of

demonstrating that the defendant has unlawfully discriminated against him. See

Texas Dept of Community Affairs v. Surdine, 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed . 2d 207 (1981) . The familiar McDonnell Douglas framework governs the

allocation of burdens and order of presentation and proof, and they are as follows:

(1) plaintiff has the burden of proving by a preponderance of the evidence a prima

'I facie case of discrimination ; (2) if the plaintiff succeeds in proving the prima facie

i case, the burden (of production) shifts to the defendant to articulate some

I legitimate, non-discriminatory reason for the action taken against the employee;

. . a.~~. . .a. ~poi.~~ ~..t~. .~., ...I. .a. ~#tio.. ., ..~ofe..,...... i-...... ~.r .,. .. .T.~. . - --1-1l .-aa t,...... ~.. . ., .,.,.r *.:r..

to prove by a preponderance of the evidence that the legitimate reason offered by

defendant was a pretext for discrimination . See McDonnell Douglas Corgi v.

Green , 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973) .

A plaintiff may establish a prvna jade case of discrimination under Title VII

by presenting direct evidence of discriminatory intent. Alternatively, a plaintiff

may establish a prima facie case through a variant of the circumstantial evidence

test established in McDonnell Douglas. In the present case, Plaintiff relies on

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circumstantial evidence, rather than direct evidence, to establish a prima facie

case; therefore, application of the McDonnell Douglas test is appropriates

A plaintiff can make out a prima facie case of disparate treatment by proving

(1) that he was within a protected class ; (2) that he suffered an adverse

employment action ; and (3) that a similarly situated employee nDt within his

protected class was not subjected to the adverse employment action . See Burdine ,

450 U.S. at 258, 101 S. CL. at 1096; Krieg v. Paul Revere Life Ins. Co . , 718 F.2d

998, 999 (1 I`hCir.1983) . The alleged discriminatory action must be subjectively

and objectively adverse . See Gunta v. Florida Bd . of Regents , 212 F.3d 571, 583

!l lIh ('ir ~nnni~ flnP v T1cKalh ('niinhr Cr},nnl Tl ;etr :rt Idr. F '2r1 1dd1 !l 7th . ___ ..li r . .v ...... ~ . . ~~~ ......

'Plaintiffs contend that they have direct evidence of religious discrimination because the comments made by Sid Williams produce an inference of discriminatory motive. Quoting from Judge Tjo(lat's opinion in Wright v . Southland Corporation , 187 F.3d 1287, 1293 (11`^ Cir. 1999), Plaintiffs write, "The courts have defined 'direct evidence' as that 'from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic .' [Doc. 50 at 32J. The undersigned disagrees that this is the definition of direct evidence . As the court in Ferrell y . Masland Carpets, Inc . , 97 F. Supp. 2d 1114, 1122 n. 11 (S.D. Ala. 2000), explained, "Judge TjoRat's definition of direct evidence `is mere obiter dictum, as it was no[ necessary to the resolution of the case, and neither of the two other members of the panel joined that portion of the opinion." Id. (quoting Conlev v . Bax Global. Inc. , 80 F. Supp. 2d 1342, 1348 (S .D . Fla. 2000)) . The Ferrell court also noted that the Eleventh Circuit has refused to apply Judge Tjotlat's definition of direct evidence since his opinion was issued . Id. (citing Damon v. Fleming Supermarkets of Fla. . 196 F.3d 1354, 1358-59 (11 `h Cir. 1999) ; Beaver v. Ravonier_ Inc., 200 F.3d 723, 729-30 (11h Cir. 1999)) . 1n the present case, Williams' comments are circumstantial evidence of discrimination, and the McDonnell Douglas burden shifting framework is applicable.

A0 72A 11 (Rev .flr92)

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1998) (adopting an objective test to determine if an employment action is adverse).

Moreover, the adversity must be material ; that is, it must be more than `some de

minimis inconvenience or alteration of responsibilities.' DeKalb County School

District, 145 F.3d at 1453 .

in the present case, the first two (2) prima facie elements are satisfied

because all four (4) Plaintiffs are Jewish and suffered adverse employment actions .

Plaintiffs Silverman and Ralin were terminated, Plaintiff Harman was denied a

part-time schedule before being terminated, and Plaintiff Gutstein's teaching hours

were reduced from full-time to part-time and eventually to zero. [DSMF,1 29, 70 ;

llel . Ex . 92 ; l1SpL1I1 UCP . ill 1L%-GOJ. r1i.11111111S have also satisfied i.2 .ii~ui prima

facie elements by showing that similarly situated non-Jewish employees were

retained by Life University.

When Silverman was terminated from his employment in the Biochemistry

Department in September o(1999, two 12) other instructors. Henry Zeidan and Bob

Waterson, remained employed in the department. [Silverman Dep. at 189 .

Neither Zeiden nor Waterson is Jewish. (Waterson Dep. at 8; Gutstein AN. 1 21] .

Ralin's teaching hours were cut around the end of November in the fall

quarter of 1999, and he was terminated on December 13, 1999 . IDef. Ex. 92 ; Ware

Dep. at 78-861 . All of Ralin's courses in the Biology Department were awarded to

Michael Hoefer, who is not Jewish . [Plaintiffs' Statement of Material Facts

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("PSMF") 1 29 ; Ware Dep. at 48-51, 78-86] . Two (2) other biology teachers who are

not Jewish, Scott Carpenter and Sandra Davidson, did not have any of their

teaching hours given to Hoe(er. [Ware Dep. at 81-84].

Harman was not awarded a part-time position, as he had requested, after he

returned from his FMLA leave in January of 2000 . IDSMF 1123, 27] . However,

Deborah Pogrelis, Chief of Staff of Clinics, acknowledged that at least one non-

Jewish instructor, Ken Holewinski, worked a part-time schedule at the clinic

during this same period of time . [Pogrelis Dep. at 40-49]. Plaintiff Harman

contends that since the time he was terminated, two (2) other non-Jewish

V fIINivj ~e.BS, ~Ruivi~ iiaTio uaiu :'.iai n A iIIv$, worked paai-~uiaa ~°.aa~. uCiiuili°,u ui iiiv C:L::C

as well . [Harman Dep. at 144-511.

Gutstein's teaching hours were reduced because, according to Life, his lack

of a Ph.D . made him unqualified to be a lead instructor in Basic Science courses.

[Asplin Dep. at 85-86, 155-56] . Although Gutstein was qualified to teach lab

courses, he was not offered any of these teaching hours. [Asplin Dep. at 1571 .

However, Robert Burger, a non-Jewish professor, who also did not have a Ph.D.,

was given hours teaching lab courses immediately after being notified that he

could not continue as a lead instructor in the School of Chiropractic. Burger Dep.

at 6, 7, 13, 17-20]. This occurred in the spring o! 2001, the same time Plaintiff

Gutstein's hours dwindled to zero. [Id. ; DSMF 1 701 .

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All four (4) Plaintiffs have established a prima facie case of religious

discrimination . Thus, the burden of production shifts to Defendant Life University

to articulate some legitimate, non-discriminatory reasons for the actions taken

against Plaintiffs. See Combs v. Plantation Patterns, 106 F. 3d 1519, 1528 (11'h

Cir. 1997) (citing McDonnell Douglas , 411 U.S. at 802, 93 S. Ct. at 1824 ; Burdine,

450 U.S . at 254, 101 S. Ct. at 1094) . To satisfy its burden of production, "the

defendant need not persuade the court that it was actually motivated by the

proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue

of fact as to whether it discriminated against the plaintiff." Id. (quoting Burdine ,

ACA IT o v ncn cc ini c n. innn~ vrmiti_ i__ .__ ~ i_ . ~ ..rv v . .~ . u~ ~.~~'JJ~ 1Vl U . ~,i. at av7-r~ . ~i~uc emp loyer need on ly pro duce

admissible evidence which would allow the trier of (act rationally to conclude that

the employment decision had not been motivated by discriminatory animus." Id.

(quoting Burdine, 450 U.S. at 257, 101 S. Ct . at 1096). The defendant's burden

in the rebuttal stage is "exceedingly light." Walker v. NationsBank of Florida, 53

F.3d 1548, 1556 (l 1w Cir. 1995) ; Perrvmen v. Johnson Prods. Co. , 698 F.2d 1138,

1142 (11 w Cir. 1983).

Once the defendant satisfies its burden of producing a legitimate, non-

discriminatory reason for the actions taken against the plaintiff, "the presumption

of discrimination created by the McDonnell Douglas framework `drops from the

case,' and `the factual inquiry proceeds to a new level of specificity.' Combs, 106

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F.3d at 1528 (quoting Burdine , 450 U.S. at 255 8s n. 10, 101 S. Ct. at 1094-95 8s

n. 10) . The plaintiff then "has the opportunity to demonstrate that the defendant's

articulated reason for the adverse employment action is a mere pretext for

discrimination ." Holifield v. Reno, 115 F.3d 1555, 1565 (I1 'h Cir. 1997) (citing

McDonnell Douelas , 411 U.S. at 804, 93 S. Ct. at 1825) . Plaintiffs proof of pretext

merges with his "ultimate burden of showing that the defendant intentionally

discriminated against the plaintiff." Id. (citing St . Mary's Honor Ctr. v . Hicks, 509

U.S . 502, 511, 113 S. Cc . 2742, 2749, 125 L. Ed. 2d 407 (1993)) . This task is a

highly focused one.

TL 4 - .- f_11 L 'J_ t 'If I uc cOUi i wubi, I view ui au iuc eviuciicc, ucicrminc wile[ncY itlc pialniiu

has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons

to permit a reasonable fact finder to conclude that the employer's proffered

legitimate reasons were not what actually motivated its conduct." Combs, 106

F.3d at 1538 (quoting Cooper-Houston v. Southern Rv . Co., 37 F.3d 603, 605 (1 1`"

Cir. 1994)). The court's task is to `evaluate whether the plaintiff has demonstrated

'such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its action that a

reasonable fact finder could find them unworthy of credence." Id. (quoting

Sheridan v. E.I . DuPont De Nemours 8s Co., 100 F.3d 1061, 1072 (3'° Cir. 1996)

(en bane), cert. denied , 521 U.S. 1129, 117 S. Ct. 2532, 138 L. Ed. 2d 1031

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(1997)x . "(A] plaintiff may not in all cases merely rest on the laurels of [his] prima

I facie case in the face of powerful justification evidence offered by the defendant."

Griesby v . Reynolds Metals Co. , 821 F.2d 590, 596 (11 `h Cir. 1987) . Plaintiff can

either directly persuade the court that a discriminatory reason more likely

motivated the employer or show indirectly that the employer's proffered

explanation is unworthy of credence. See M iles v. M .N .C . Corms" , 750 F .2d 867,

870-71 n .4 (1V' Cir. 1985) .

In the present case, Defendant Life University has satisfied its exceedingly

light burden of producing legitimate, non-discriminatory reasons for the various

adverse actions. rl8itiulis ic5yutlu' by arguing that pretext can be shown :..:.h

respect to all of Life's stated reasons. Plaintiffs also argue that the discriminatory

animus of Life's President Sid Williams (as revealed by his various comments and

statements) is evidence that the stated reasons are not what actually motivated the

decisions made by the University . [Doc, 50 at 33, 35-40] . The court will examine

Life's proffered reasons and the corresponding arguments of pretext offered by

each Plaintiff.

1. Plaintiff Silvermaa

Defendant Life contends that Bert Silverman was terminated due to the

University's reduction-in-force (°RIF") and "because he had the least seniority of

the three members of the Biochemistry Department." JDoc . 21 at 331 . After

AO 7'1A (ReY.W82)

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Silverman's termination in September of 1999, two (2) other instructors, Henry

Zeidan and Bob Waterson, remained employed in the Biochemistry Department.

ISilverman Dep. at 189].

Sam Demons, Chair of the Basic Sciences Division, wrote a letter in the fall

of 1999 to Sid Williams which contained a recommendation from Demons that

Plaintiff Silverman should be terminated .b (De(. Ex . 191 . Midway through the

letter, alter noting personal conflicts between Henry Zeidan and Thomas Iha,

Demons wrote, "Seniority of Dr. Silverman and Dr . Zeidan was another

consideration for me . Dr. Zeidan has been with Life for approximately ten years

while Dr. jiiverman had peen here three iv lour ycarts . The last iiiecu in [SL-U-1

generally the first fired in most situations with all other factors being equal." (Def.

Ex. 19] . Oddly, at his deposition, Demons was asked and testified to the following:

Q. Have you ever heard of a policy at Life University that the last person hired is the first one to be released? . . . Is there such a policy, to your knowledge, at Life University that if cutbacks take place that the last person hired is the first person to be fired? A. I haven't heard of that policy. Q. Have you, yourself, ever stated that that was a policy at Life University? A. Not by itself, no.

(Demons Dep. at 56-57].

6Demons' letter was written in response to a letter from Thomas lha, Head of the Biochemistry, Microbiology and Pathology Departments. Iha had written to express his opposition to the release of Silverman instead of Henry Zeidan . [Def. Ex. 181 .

A0 77A (Rev .81B2) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 213 of 296

Keith Asplin, Vice President of Academic Affairs and the decisionmaker who

directed Life's deans to identify faculty members for termination, testified similarly:

Q. Have you ever heard of a policy at Life University that the last that's hired is generally the first fired? A. No . I have had people use that phrase with me as being a norm in the workplace but not that that was a practice.

[Asplin Dep. at 135-361. Asplin further testified that the sentence in Demons'

letter stating that the "last hired his] generally the first fired" was an incorrect

statement of Life University policy. [Def. Ex . 19 ; Asplin Dep. at 1361 . Nevertheless,

Defendant Life now claims that Plaintiff Silverman was selected for termination

because he was hired more recently than two (2) other biochemistry teachers.

And, although Asplin and Demons deny that Life has a `last hired/first fired"

policy, Defendant cites the deposition testimony of both Asplin and Demons in

support of its claim that Plaintiff Silverman was laid off because of a lack of

seniority. A reasonable jury could find this assertion dubious .

Further evidence supporting Plaintiff Silverman's claim of pretext is the fact

that seniority apparently played no part in the termination decisions of other Life

teachers. For example, as discussed infra, Plaintiff Ralin was selected for

termination over Scott Carpenter, a similarly situated teacher, even though Ralin

had been at Life longer than Carpenter. (Ware Dep. at 90] . A reasonable jury

could also find that Silverman's religion played a part in his termination given Sid

AO nn (Rev.8IB2) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 214 of 296

Williams' comments and statements regarding Jewish employees. This fact is

significant because, as Asplin testified, Sid Williams made the final decision with

respect to Silverman's termination. [Asplin Dep. at 129-30] .

Given Williams' numerous discriminatory comments and the conflicting

testimony about why Silverman was selected for termination over Zeidan and

Walerson, the undersigned finds that a factfinder could conclude that Life's

proffered reasons for terminating Silverman are pretexts for religious

discrimination . It is, therefore, RECOMMENDED that Defendant's summary

judgment motion [Doc . 211 be DENIED on Plaintiff Silverman's claim of religious

U161:111i1i11G[iVia iii aiiS iciI-L LiAn niiGia .

Z. Plaintiff' Ralin

Life University asserts that Plaintiff Dennis Ralin was laid off due to the RIF

and "because he had poor student evaluations and complaints, had less seniority

than [Michael] Hoefer and was not tenured as Hoefer was." (Doc. 21 at 331 . In

support of this assertion, Defendant Life cites the deposition testimony of Mamie

Ware, Dean of the School of Arts and Sciences . [Doc. 21 at 22-23, 33) . Ware

testified that Keith Asplin instructed her to create a schedule for Michael Hoefer,

who was moving out of the Academic Affairs office and into a position teaching

biology . [Ware Dep. at 79-84J . Ware also testified that Asplin made the decision

to cut the teaching hours of Plaintiff Ralin, who was also scheduled to teach

no pan (Rev .e182) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 215 of 296

biology, instead of the hours of Scott Carpenter, another faculty member teaching

biology. [Id.]. According to Ware, Asplin did not explicitly use Ralin's name, but

Ware knew Asplin was referring to Ralin when he instructed her to cut the

teaching hours of the person "in the past that may have gotten bad evaluations or

had some student problems. . . ." Ware Dep. at 81-82] .

Plaintiffs argue that a reasonable jury could find [hat Defendant's proffered

reasons are actually pretexts for religious discrimination, and the court finds this

argument persuasive. Defendant cites Ware's deposition testimony in support of

its stated reasons for terminating Plaintiff Ralin's employment. However, at her

-- .u deposition, A'1,/^a :°, 4~, ~ ~i~° iiioi uii~ uiu no' RilV1d W -1 ----J

and, as far as she knew, Asplin was the individual "JwJho made the decision that

it would be Dr. Ralin's hours that were cut back for Dr. Hoefer as opposed to Dr.

Carpenter or Dr. Davidson." [Ware Dep. al 76, 81, 90-921 . Ware testified that

Asplin did not ask for her opinion about the issue. Ware Dep. at 81]. Ware also

stated that she even asked Asplin if she could take teaching hours away from

multiple teachers rather than just from one, so that Ralin could remain employed .

Asplin responded that she was to take hours away from just one person, and he

implied that Plaintiff Ralin was that person. Ware Dep. at 83]. Defendant Life

does not cite, and the court cannot find, any testimony from Asplin explaining why

he wanted Ralin terminated . While Asplin apparently had some involvement with

A0 77A Jaev.ere21

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the decision, as noted supra, Sid Williams had final decisionmaking authority on

personnel decisions at Life University, including hiring, firing, promotion, and

tenure. [Asplin Dep. at 24-26, 36, 40].

Life contends that Ralin was terminated instead of Hoefer because of

complaints made about Ralin by students and because he lacked seniority and

tenure. Yet, the University fails to explain why Ralin was selected for termination

over Scott Carpenter, another employee who taught biology. Carpenter's hours

were not reduced and he was not terminated even though, like Plaintiff Ralin, he

lacked tenure and also had been the subject of student complaints in the past .

~ .__' "__ on o0 On -oft i_. . . .J,I :F :,. .. o~ .. ..t'Cfo -l ; ., i~ .~ 4 .1'.° ° .`f~ ~.~^ '° .r W are L/GfJ . at uL-VJ~ u7-7v~ . iu uvuiuvaa~ ~ nu"ua : :. :S :r

longer than Carpenter. old. at 901 . This casts doubt on Defendant's claim that

seniority was a significant factor that the University considered when making

termination decisions.

Based on these facts, the court finds that there is sufficient evidence to

persuade a jury that Defendant's stated reasons are not what actually motivated

the University's decision to terminate Ralin . Accordingly, the undersigned

RECOMMENDS that Defendant's summary judgment motion [Doc. 2 11 be DENIED

on Plaintiff Ralin's claim of religious discrimination in his termination.

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ff 1k

3. Plaintiff Harman

After Plaintiff Bruce Harman returned from his FMLA leave in January of

2000, he informed Lice University that he was unable to return to his full-time

position . He requested a part-time position, but the University denied this request.

JDSMF 1' 23, 27] . According to Life, "there were no other part-time positions

available for which he was qualified" because of the RIF and his physical

limitations . [Doc . 21 at 32].

Plaintiff Harman contends that this is a pretext for religious discrimination .

Harman argues that other part-time "positions were actually available for the three

ro~ i .._ . . " ..1_ r, . ., . . . ._.. .7 ~l .e .. . Imo . . ~~ Oo Onl ~ .. (.~) ilvir.~cwi~~i professors whoW1lV PcC{uCSwule w~.u . .~ [ ~.., . a ii . .. --

of this assertion, Harman cites the testimony of Deborah Pogrelis, Chief of Staff of

Clinics. The court, however, finds that Plaintiff has not offered any evidence that

a part-time schedule was available in the clinic system.

Plaintiff Harman testified that he was told by his supervisor, Steven

Mirtschink, that no part-time schedules were available . [Harman Dep. at 131-32,

275-761. He was also informed via letters from both Pogrelis and Ron Kirk, Dean

of the School of Chiropractic, that there were no part-time positions available at

that time. IDef. Exs. 113, 114; DSMF 1 271 . This explanation has consistently

been offered by Defendant as the reason Plaintiff Harman's request for a part-time

schedule was denied.

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At her deposition, Pogrelis testified that she was only aware of one

instructor, Ken Holewinski, who had ever worked a part-time schedule. She stated

that Holewinski started working part-time at the clinic before January of 1999,

when Pogrelis was appointed to her current position. [Pogrelis Dep, at 19-20, 40-

49J . Pogrelis also testified that Holewinski was the only part-time clinical

instructor from 1998 to 2002 and that there were never any openings for other

part-time instructors. [Id .) . There is no evidence in the record which contradicts

Pogrelis'testimony. Plaintiff Harman contends that two (2) other employees, Malon

Harris and Mark Amos, also worked part-time schedules at the clinic . Harman

n°,. .. . inecii n. . . oi ., : .,f:rcti ....,.4Te..va _ ...a. :__ . .~ :.. ..I_ :_ .,}.. aL .- . 1 .. . I . ~~ .. . .a.. .i.. . ..ao V-11 -1u uvuiu1g w SiiyEriwLi uiia ~aaiuL vwu waia

his own hearsay-based testimony . Because Plaintiff Harman is unable to show

that a part-time position was available in January of 2000, when Harman

requested such a position, he had failed to show that Defendant's stated reason

is unworthy of credence.

Defendant Life also asserts that Harman was not qualified for any other

position at Life "fib]ecause of his fraudulent use of FMLA leave and his violation of

Life's policy on outside employment. . . ."' [Id. at 32-33j. Plaintiff Harman

'Plaintiff contends that "these are post-hoc explanations which Defendant now asserts for purposes of establishing a case ." [Doc. 50 at 391 . Plaintiff then goes on to discuss the desired part-time clinic position again . However, as noted, Defendant asserts that these reasons explain why "Harman was not qualified for any other position at Life.' [Doc . 21 at 33] . With respect to the part-time clinic

A0 72A (Rev.B92) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 219 of 296

acknowledges that while he was out of work on FMLA leave, he traveled and sold

services and products for a business owned by his wife and taro (2) friends.

(Harman Dep. at 54, 60-64, 81] . Nevertheless, Harman argues that he "did not

violate the stated Life policy, which prohibits anyone from performing any outside

work where `remuneration is either expected or received' because he did not get

paid for this work and did not expect to get paid ." [Doc . 50 at 391 . The court finds

this argument unpersuasive.

First, it is not clear that Plaintiff did not violate Life's policy. Plaintiff was

working between fifteen (15) and twenty (20) hours per week selling services (or a

~ ~l _J L . L .f_ ITf . T M CA ~~ c w nn nn nn l.V1mIcompany EJG1UdllyV H' 1 1 0U U)' IIIJ H'IIC . In GIlIlQll LCEI . ttt JL-JY, J7-VY, !L-/Y, !O'

821 . It seems reasonable to interpret Harman's actions as working for

remuneration . Moreover, even if Harman, while he was on FMLA leave, did not

violate Life University's policy on performing outside work, this is immaterial to the

pretext inquiry. "Rather, what is material is whether or not the employer believed

the allegations to be true, not whether they were in tact true." Sweeney v. Alabama

Alcoholic Beverage Control Board , 117 F. Supp. 2d 1266, 1273 (M .D . Ala. 2000) .

"An employer who fires an employee under the mistaken but honest impression

faculty positions, the evidence establishes that the decisionmakers involved in Harman's request, such as Mirtschink, Pogrelis, and Kirk, consistently stated that Plaintiff was not offered such a position because there were none available. [Harman Dep. at 131-32, 275-76 ; Def. Exs. 113, 114 ; DSMF 1 271 .

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that the employee violated a work rote is not liable for discriminatory conduct.'

Damon, 196 F.3d at 1363 n. 3. Based on the evidence presented by Plaintiff, the

court finds that a reasonable jury could not conclude that "the employer has not

given an honest explanation of the employer's behavior."s Id.

Defendant Life has offered legitimate, nondiscriminatory reasons for not

granting Plaintiff Harman's request for a part-time position, and Plaintiff has failed

to show that these reasons are actually pretexts for discrimination . Accordingly,

the undersigned RECOMMENDS that Defendant's summary judgment motion

JDoc. 211 be GRANTED on Plaintiff Harman's claim of religious discrimination in

L'_ . ~u~ tC,-i1Ilili8i.i0ii.

4. Plaintiff Gutsteia

Donald Gu [stein's teaching hours were reduced, according to Defendant Life,

due to the RIF and the fact that Gutstein was not qualified to be a lead instructor

in Basic Sciences courses because of his lack of a Ph .D. [Doe. 21 at 331 . Life

contends that after the faculty layoffs, there were no positions available for which

Gutstein was qualified to teach . [Id.J. In addition, Life states, "Gutstein did not

"The court also notes that Plaintiff Harman's opinion about Defendant Life's interpretation of its own policy is irrelevant. As the Eleventh Circuit stated in Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11'" Cir.1984), "Title Vll does not take away an employer's right to interpret its rules hand policies] as it chooses, and to make determinations as it sees fit under those rules hand policies]."

AO 72A (Rev.B/82)

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have and was not willing to obtain a Georgia chiropractic license, so he was not

qualified to teach in the Chiropractic School.' (Id.] .

Plaintiff Gutstein contends that a reasonable jury could conclude that these

stated reasons were not what actually motivated the decisionmakers' conduct.

Plaintiff points out that although the University claims that no teaching positions

were available for Gutstein, Wayne Menkus, Head of the Physiology Department,

stated otherwise. Menkus testified :

1 had realized that Dr. Gutstein was a great teacher for the school . . . and I asked Dr. Mayne, do you have any part-timers that maybe we could get rid of, put them on the short list, giving Dr. Gutstein enough compliment of hours to keep him at full-time status? Dr. Mayne's ue .a : .a ire 1, ..A +..... -+ ;- ..f ...l, .r .. .IIoA 1cJt1Vl~JCWnJ}7VSiiiVC . iwuLu. ~a~,a~auiovobCa .v .mW wua~a.°. ...+ . ... dry lab in Anatomy that would be a total of six hours, which could have been taught with the credentials because Dr. Mayne also reviewed Dr. Gutstein's college credits and agreed that he could teach it . So between ourselves as department heads, we agreed that what we would do between ourselves is give Dr. Gutstein these extra hours to help him remain at a full-time status.

(Menkus Dep. ac 26-271 .

On numerous occasions afterwards, Menkus informed Samuel Demons,

Chair of the Basic Sciences Division, of the solution he had come up with to keep

Gutstein at full-time . (Id. at 27-28J . Menkus described the third time he

suggested his proposed solution to Demons: `At that point, Dr. Demons told me

that I needed to tell Dr. Gutstein that this is his schedule, and he handed me the

schedule . That schedule did not contain any of the hours that would have allowed

AO 721 (Rev .8182) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 222 of 296

Dr. Gutstein to remain full time .' [Menkus at 28-29]. When Menkus asked

Demons why his proposal to allow Gutstein to teach lab courses had been rejected,

Demons responded by saying, °IIjYs not my decision, it's not your decision." II.

at 29] . Demons did not tell Menkus whose decision this was. IId.I. Menkus

testified that he and Demons met with Gutstein to give him his schedule:

Dr. Gutstein looked at the schedule, noticed that, of course, he's no longer on full-time status, [and) made a comment about that. . . . And at that point 1 said, Dr. Demons, 1 just am asking one more time, what about the possibility of giving Don dry lab, an extra six hours, to keep him in full-time status. . . . Dr. Demons then locked at me and then looked at him, gave it to him and said, this is all I can do .

[Menkus Dep. at 30].

Florence Rigby, a faculty member in the Physiology Department who became

department head in January of 2000, testified that when she spoke with Demons

about giving Gutstein some hours available in the Biochemistry Department,

Demons "said simply that he didn't think it would be a good idea." [Rigby Dep. at

301 . Bob Waterson, an instructor in the Biochemistry Department, testified that

Demons made it "very clear that we're not to do any favors to help Dr. Gutstein

out." [Waterson Dep. at 45J . Rigby also testified that Matt Williams, head of

Clinical Sciences, stated in a curriculum meeting that "he would only employ

[Gutstein] with direct orders from the higher administration ." IRigby Dep. at 231 .'

'Plaintiff Gutstein cites the deposition testimony of Edie Dalhauser in support of his claim that "Kim Williams instructed Sam Demons, the chair of Basic

AO 72A (Rev .&82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 223 of 296

As noted supra, Asplin testified that although Gutstein was qualified to teach

lab courses, he was not offered any of them. [Asplin Dep. at 157]. In the spring

of 2001, when Gutstein's hours dwindled to zero, Robert Burger was given hours

teaching lab courses immediately after being notified that he could not continue

as a lead instructor in the School of Chiropractic because he, like Gutstein, did not

have a Ph .D . Burger is not Jewish . Burger Dep. al 6, 7, 13, 17-20 ; DSMF T 70] .

Given these facts, the court finds that a reasonable jury could conclude that

Life's stated reasons for reducing Gutstein's hours were pretexts for

discrimination . Defendant Life contends that there were no courses that Plaintiff

Gutstein could teach, but testimony from faculty members reveals that teaching

hours, at least in the form of lab courses, were available that Gutstein was

qualified to teach . Moreover, a reasonable jury could conclude from the testimony

discussed above that Demons received instructions from Sid Williams regarding

the decision not to offer available teaching hours to Gutstein . In light of the

comments regarding Gutstein's religion made by Sid Williams, the fact that

Williams appears to have been involved in the decision lends further support to

Gutstein's religious discrimination claim. Accordingly, the undersigned

Sciences, to cut Gutstein's hours until he quit ." /Doc. SO at 15] . The court will not consider this assertion because it is based solely on hearsay . Dalhauser stated repeatedly that this was a rumor and that she did not even know who told her about it. [Dahlhauser Dep. at 30-31, 371.

AO MA (Rev .Bl82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 224 of 296

RECOMMENDS that Defendant Life University's summary judgment motion [Doc.

21 1 be DENIED on Plaintiff Gutstein's claim of religious discrimination with respect

to the reduction of his hours and his eventual termination.

C: Age Discrimination Claims Asserted by Ralin and Gutatein

The court will next address the claim made by Plaintiffs Donald Gutstein and

Dennis Ralin that Defendant Life University discriminated against them on the

basis of their age, in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S .C . g 623, et se q . The ADEA provides in pertinent part:

1t shall be unlawful for an ernployer- (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to '11Jcmompensation,compensation,~ terms, Cvi"v:fiv i: $, v. privileges of employment, because of such individual's age ; . . .

29 U.S .C . § 623(a)(1) .

Because Plaintiffs in the present case are relying on circumstantial evidence,

they must first establish a prima facie case of age discrimination using a variant

of the McDonnell Douglas framework applicable to the facts at hand. To establish

a primp facie case of age discrimination, a plaintiff-employee must demonstrate ( 1)

that he was in the age group protected by the ADEA, (2) that he was adversely

affected by an employment decision, (3) that he was qualified for the position, and

(4) he must produce sufficient evidence for a reasonable fact finder to conclude

that the decision at issue was based on the employee's age . See O'Connor v.

AO 77A (itev.8rB2)

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Consolidated Coin Caterers Coro. , 517 U.S. 308, 313, 116 S. Ct . 1307, 1310, 134

L. Ed . 2d 433 (1996) ; Jameson v. Arrow Co. , 75 F.3d 1528, 1532 (11"' Cir. 1996) ;

Earley v. Champion Int7 Corp_, 907 F.2d 1077, 1082 (11~' Cir. 1990) . A plaintiff

may create an inference of age discrimination by showing that he was replaced by

a younger employee . See O'Connor, 517 U.S. at 312-13, 116 S. C[. at 1310.

The court finds that Plaintiffs Ralin and Gutstein are able [o establish prima

facie cases of age discrimination . Ralin was fifty-five (55) when he was terminated

on December 13, 1999, and Gutstein was sixty-eight (68) when he was terminated

in the spring of 2001, and both men were qualified for their positions . [Def. Ex. 92;

Ralin Dep. at 11 ; Gutstein Dep. i at S; DSMF 1f 7p1, Defendant argu,es that

age-related comments made by Sid Williams, such as referring to Gutstein as "old

Dr. Gutstein" and calling Ralin "old gray beard," do not support a finding of age

discrimination . [Doc. 21 at 31-32; Doc. 51 at 13-14] . However, Defendant Life

does not address the fact that similarly situated younger teachers, such as Robert

Burger, David Spring, Michael Hoefer, Scott Carpenter, and Sandra Davidson, were

retained after Ralin and Gutstein were terminated . [Doc. 50, Exs. B, D, E) . This

is all that is necessary for Plaintiffs to establish prima facie cases of age

discrimination.

Accordingly, the burden shifts to Defendant Life to produce legitimate,

nondiscriminatory reasons for terminating the employment of Plaintiff Ralin and

A0 72A (Rev .Bl82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 226 of 296 f !

Gutstein. Defendant's proffered reasons and Plain tiffs'arguments of pretext have

been discussed at length supra with respect to their religious discrimination

claims. Because the same arguments are made with respect to Ralin's and

Gutstein's age discrimination claims, the court need not address them in full

again. The court simply notes that Life contends that Ralin was terminated during

the RIF because of student complaints and because he lacked seniority and tenure

compared to Michael Hoefer, who was moving out of the Academic Affairs office and

into a position teaching biology. However, Defendant Life does not explain why

Plaintiff Ralin was selected for termination over Scott Carpenter, a less experienced

biology teacher who, like Kaiin, lacked tenure and had been the subject of studcm

complaints in the past. Ware Dep. at 82-83, 89-90] .

As previously discussed, Gutstein, according to Life, was terminated because

there were no courses available for him to teach. However, Wayne Menkus, Head

of the Physiology Department, testified that teaching hours were available that

Gutstein was qualified to teach . Menkus also testified that he suggested on

numerous occasions that Gutstein be given enough hours to keep him full-time,

but these suggestions were rejected. IMenkus Dep. at 26-301 . To summarize,

Plaintiffs have offered evidence which would allow a factfinder to conclude that

Life's stated reasons for terminating both Ralin and Gutstein are not what actually

motivated its conduct.

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The court finds that when this showing of pretext is coupled with the fact

that Ralin and Gutstein are able to establish prima facie cases of age

discrimination, a reasonable jury could conclude that Defendant Life discriminated

against Plaintiffs on the basis of their age . As the Supreme Court recently stated,

`[O]rice the employer's justification has been eliminated, discrimination may well

be the most likely alternative explanation . . . . Thus, a plaintiff's prima facie case,

combined with sufficient evidence to find that the employer's asserted justification

is false, may permit the trier of fact to conclude that the employer unlawfully

discriminated." Reeves v . Sanderson Plumbing Prods. . Inc. , 530 U .S. 133, 147-48,

0nm ,nom ~ ca n~ ,nom 10 An) r, . 'Onoi~v J . `11 . ~.vv! , 0100~.ivU-V7~ 09 1T1 W liU . LU 1VJ tL VV~ ~61lQlIVI1J VllllllCU~ .

Because "it is permissible for the trier of fact to infer the ultimate fact of

discrimination from the falsity of the employer's explanation," the undersigned

RECOMMENDS that Defendant's summary judgment motion [Doc. 21] be DENIED

on the claims asserted by Plaintiffs Ralin and Gutstein that they were terminated

on the basis of their age . Reeves, 530 U.S . at 147, 120 S. C[. at 2108.

D. Plaintiff Harman's Disability Claim

Plaintiff Bruce Harman's next claim is one based on the Americans with

Disabilities . Act ("ADA") . Harman experiences low back problems which, he

contends, forced him "to give up his chosen profession of practicing chiropractic

and further prevents him from prolonged standing, bending, lining objects over 10

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pounds and squatting." [Doc. 50 at 421. Harman argues that Defendant Life

University discriminated against him on the basis of his back condition and

"further failed to reasonably accommodate such condition by refusing to allow him

to return to a part-time schedule after his FMLA expired. . . ." [Doc. 50 at 41] . To

qualify for relief under the ADA, Plaintiff Harman must first establish a prima facie

case of disability-based discrimination .

A plaintiff must show three (3) elements to make out a prima facie case : (1)

that he has a disability ; (2) that he is a qualified individual ; and (3) that he was

discriminated against because of the disability . Sec Pritchard v. Southern Co.

UUo,.- Y/L:,.,.CJ. ., ~ nn7L Pc .J~oa 1i l-IVtc on Ia avri Zo \n" AOhr vu;r .~~I u~,*,ar,Anrl ~ t n7. . .. F" . .'3A.. . . 1 1 1 .q11.. I 11h rir- 1 Q4fi1- -

The ADA defines "disability" as "(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual; (B)

a record of such impairment; or (C) being regarded as having such an impairment."

42 U .S.C . g 12102(2) . An impairment is "substantially limiting" when the person

claiming disability is either:

(u]nable to perform a major life activity that the average person in the general population can perform; or [s]igniCicantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

AO 72A (Rev &82)

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29 C.F.R. § 1630.2(j)(1) . "Major [life JaIctivities means functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working ." 29 C.F.R . § 16302(i) .

In the present case, Plaintiff Harman contends that his back condition

qualifies as a disability because it "caused him difficulty in standing, bending and

lifting within certain restrictions and prevented him from continuing as a

chiropractor." [Doc. SO at 431. The court finds that this conclusory statement'°

does not come close to satisfying Plaintiffs burden . With respect to his non-work

capabilities, Plaintiff has offered no evidence that any major life activity was

offo .ro.i : ., ~nv c;onifirnnt Rmv F,v hie hurl( nmhlrmc The iinr9vrcionr/1 r9nr¢ not ...... , ...... _. .~ ., .b ...... , ...... ~ ..~ ...., ., .,.... . r. .._ .., ._ ... . ._ ._ _-___ ._ .a . ._- ______

deny that Plaintiff's back "caused him difficulty," as he contends, but this falls well

short of the ADA standard for determining disability .

Harman testified that even when his back problems were at their worst, that

is, when he was out of work on FMLA leave, he performed housework, washed

clothes, did light cleaning and cooked . Harman Dep. at 128-29/ . During this

same period of time, he worked approximately fifteen (15) to twenty (20) hours per

week doing research and selling services for Now You Know, a company partially

owned by his wife, and traveled extensively to places like Detroit, Orlando, Las

"'The court notes that this statement, along with many others offered by Plaintiff, includes no citation to the record. IDoc. 50 at 431 .

A0 72A (Rav.8,B2)

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Vegas, and Davenport, Iowa. [Harman Dep. at 52-54, 59-64, 72-74, 78-821 .

Moreover, there is no evidence that Plaintiff Harman has ever been severely

restricted in caring for himself or doing any other activity that is "of central

importance to people's daily lives ." Toyota Motor Mfg. . Kv ., Inc. v . Williams, 534

U.S . 184, 122 S. Cc . 681, 151 L. Ed. 2d 615 (2002) (In addressing plaintiffs claim

of disability with respect to performing manual tasks, the Court noted,

"[Household chores, bathing, and brushing one's teeth are among the types of

manual tasks of central importance to people's daily lives, and should have been

part of the assessment of whether respondent was substantially limited in

.._C._ .. . . yc~~~~i~~uig manualuini~ua~ Laana. 1.

Plaintiffs claim regarding the effect his back condition had on his ability to

work is also unpersuasive . For an impairment to substantially limit a person's

ability to work, it must significantly restrict "the ability to perform either a class

of jobs or a broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities." 29 C .F .R. 1630 .2(j)(3)(I) .

The "inability to perform a single, particular job does not constitute a substantial

limitation in the major life activity of working." Id.

In the present case, Plaintiff Harman has offered no evidence that his back

problems prevent or significantly restrict him from performing "either a class of

jobs or a broad range of jobs in various classes.' Instead, the evidence indicates

AO 72A (Rev .&82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 231 of 296

that the number of jobs that Plaintiff is incapable of performing is extremely small.

Dr. Alan Maloon, Plaintiff Harman's treating physician, testified that Plaintiff was

only restricted from performing the job of a chiropractor adjusting patients 'plus

any job which involves bending, stooping, twisting or anything that involves lower

back motion .' [Maloon Dep. at 23-24, 43). Although Harman contends that his

back condition forced him "to give up his chosen profession of practicing

chiropractic," this is irrelevant to the issue of disability. [Doc. 50 at 42). As the

Supreme Court has stated, "To be substantially limited in the major life activity of

working, then, one must be precluded from more than one type of job, a specialised

job, or a particular job of choice.- Sutton v. unified Air Lines, inc . , 527 U.S . 4? :,

492, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450 (1999) (emphasis added) . Because

Plaintiff has failed to offer evidence showing that he is precluded from a substantial

class of jobs, he has not satisfied this prima facie element of disability-based

discrimination and summary judgment is, therefore, appropriate .

Plaintiff Harman makes a brief argument that he satisfies the first prima

facie element based on the ADA's provision that having a disability includes "being

regarded as having such an impairment." 42 U.S.C . § 12102(2). Plaintiff argues,

"(EJven if [Plaintiff's) condition had not actually limited one or more of Harman's

life activities, Defendant perceived him as suffering from such a disability." [Doe.

50 at 44-451 . This argument is meritless.

AO 72A (Rev .Bl82)

~avsswe.~ .~i n .~ n n.~ o. waewa mi Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 232 of 296

The Supreme Court has written, "There are two apparent ways in which

individuals may fall within this statutory definition: (1) a covered entity mistakenly

believes that a person has a physical impairment that substantially limits one or

more major life activities, or (2) a covered entity mistakenly believes that an actual,

nonlimiting impairment substantially limits one or more major life activities."

Sutton , 527 U.S. at 489, 119 S . C[. at 2199-50 . "ICJourts have observed that the

focus of these ADA provisions and regulations is on the impairment's effect upon

the attitude of others . These provisions and regulations are intended to combat

the effects of archaic attitudes, erroneous perceptions, and myths that have the

effect of disadvantaging persons with, or regarded as having, disabilities ." Gordin

v. E.L. Hamm & Associates. Inc. , 100 F.3d 907, 913 (11`" Cir. 1996) (citations

omitted) . In the present case, Plaintiff argues that Defendant Life regarded him as

disabled simply because [he University was aware that Plaintiff had a bad back.

Plaintiff cites the fact that Defendant granted him FMLA leave in 1999 and that

Defendant knew that his back condition prevented him from working as a

practicing chiropractor in the fall of 1999. This is simply insufficient .

In analyzing whether an employer mistakenly perceived an employee's

impairment to be one that substantially limits a major life activity, "it is necessary

first to determine whether an impairment, either actual or perceived, would

constitute a disability under the ADA." Bray v. Nat9 Services Industries. Inc., 209

AO 72A (Fev .BIB2) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 233 of 296

f .

F. Supp . 2d 1343, 1350 (M .D . Ga. 2001) . As discussed supra, Plaintiff Harman's

back condition is not a disability. In addition, Harman has failed to produce

evidence showing that Defendant Life mistakenly perceived that his back problems

substantially limited a major life activity . Defendant Life only became aware of

Plaintiff Harman's back condition because he informed Defendant ofhis limitations

and his need to take FMLA leave . "Where a 'defendant's recognition of plaintiff's

limitations was not an erroneous perception, but instead was a recognition of a

fact,"a finding that plaintiff was regarded as disabled and, therefore, his] entitled

to the protections of the ADA[,J is inappropriate .' Hilburn v .Murata Electronics

NGi ui niiciiCa, Inc. , ioi r..iu iziV, iiJV (l l1h l.lf.i777) iC]UOCIIIg 1VICCOl10UgI1 V .

Atlanta Beverage Co . , 929 F. Supp. 1489, 1498 (N.D. Ga.1996) ; Bute v. Schuller

Int7 inc. , 998 F. Supp. 1473, 1477 (N.D .Ga .1998)) . Because Plaintiff Harman has

failed to offer any evidence that Defendant Lice erroneously perceived his back

impairment as a disabling condition, he is unable to satisfy this prima facie

element and summary judgment is appropriate.

The court also notes that even if Plaintiff Harman were able to satisfy the

first prima facie element, summary judgment would still be necessary because he

has not offered evidence which would allow a reasonable jury to find that he is a

.qualified individual," the second element necessary to establish a primafaciecase

of disability discrimination . The plaintiff bears the burden of proving that he is a

AO 77A (Rev.9182) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 234 of 296

.qualified individual," which the ADA defines as a disabled person "who, with or

without reasonable accommodation, can perform the essential functions" of his job.

42 U.S.C. § 12111(8) . Plaintiff's treating physician, Dr. Maloon, certified that

Harman was "unable to perform work of any kind because of a serious health

condition' as of September 24, 1999. [Maloon Dep. at 31-33; Def. Ex. 141j . Dr.

Maloon also indicated that there were no accommodations that would enable him

to perform the essential functions of his job at that time. (Maloon Dep. at 32 ; Def.

Ex. 141] .

As noted supra, during the same period of time, however, Harman spent

approximately fifteen (15) to twenty (2u) hours per week doing research and selling

services for Now You Know. [Harman Dep. at 52-54, 59-64, 72-74, 78-82] .

Harman took trips to Detroit, Orlando, Las Vegas, and Davenport, Iowa while

selling services for the company from October of 1999 to January of 2000 . [Id.].

On November 12, 1999, while Harman was traveling and selling services for Now

You Know, Dr. Maloon certified to an insurance company in support of a claim for

disability benefits that Harman was unable to perform his job and that he was

unable to work in another occupation. [Maloon Dep. at 35-36, Def. Ex. 1421.

Defendant points this out, and Plaintiff Harman responds that "the relevant inquiry

is not what Plaintiffs condition was in November 1999, but what his condition was

in January 2000, when he requested [o return to work.' [Doc. 50 at 45-461 .

AO 7u (Hev .&W) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 235 of 296

The court finds this insufficient. Plaintiff does not explain why he and his

physician informed both Life University and an insurance company that he was

incapable of performing either his job or any other job in late 1999, yet he

continued to work and travel for Now You Know throughout this time." Moreover,

in the statement to the insurance company completed in mid-November of 1999,

Dr . Maloon noted that he sees Plaintiff every six (6) months, and he indicated that

his opinion regarding Plaintiffs inability to perform any work due to Plaintiffs

"permanent" condition was for at least six (6) months. IMaloon Dep., Def. Ex. 142 .

Plaintiff bears the burden of offering an explanation for these inconsistencies, and

he has failed to provide a sufficient one in the present case . See Cleveland v. Policy

Management Systems Corp . , 526 U.S. 795,805-07, 119 S. Ct . 1597, 1603-04, 143

L. Ed. 2d 966 (1999 . Thus, even if Plaintiff Harman could show that he has a

disability as defined by the ADA, he still would not be able to establish a prima

facie case of disability discrimination because he has offered no evidence that he

is a "qualified individual."

For all these reasons, the undersigned RECOMMENDS that Defendant's

summary judgment motion IDoc. 21) be GRANTED on Plaintiff Harman's claim

that he was terminated on the basis of a disability.

"Plaintiff contends that he was not paid for his services for Now You Know, but this is irrelevant to the issue of Plaintiff's physical ability to work.

A0 72A (aev.&e2) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 236 of 296

E. Plaintiff Gutstein's State Law Slander Claim

The next claim the court will address is Plaintiff Donald Gutstein's claim of

slander per se . Plaintiffs assert the following in their complaint : "In January 2000,

LIFE, by and through one of their managerial employees, Kim Williams, began

informing students and various faculty members that GUTSTEIN did not have the

necessary credentials to teach at [he university level ." [Doc . 1 1 166 . Gutstein

contends that "such statements defame GUTSTEIN with respect to his business

reputation . . . [and] constitute slander per se ." [Id . 11 172-731.

The statements which the complaint refers to actually occurred on November

n , nnn jrn ...... e ., ne.-. i nc nc . nee c.. ci n., 7, 1 77 7 . ~u~o~i.3ui a~a.ra. at iv .~-vv, ua~. . un . .~~ . w~ ",atiua d ateaa ., n Teeung

was held with Kim Williams and some Life University students . Williams allegedly

stated that Gutstein was no longer qualified to teach physiology under the

accreditation standards of the Council of Chiropractic Education ("CCE") . (Icy.].

This statement was described in a student memo allegedly posted on a student

bullefin board . [Id .]

Slander is defined as "[m]along charges against another in reference to his

trade . . . calculated to injure him therein" or "Ju]ttering any disparaging words

productive of special damage which flows naturally therefrom." O.C.G .A . § 51-5-

AO 72A (Rev.&82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 237 of 296

4(a)(3), (4).12 "To be actionable, a communication must be both false and

malicious ." Speedway Grading Corp. v . Gardner, 206 Ga . App. 439, 441, 425

S.E.2d 676, 678 (1992 .

Significant to the case at hand is the issue of timeliness with regard to

Plaintiff bringing his slander claim. Georgia taw provides, "Actions . . . for injuries

to the reputation . . . shall be brought within one year after the right of action

accrues. . . ." O.C .G.A . § 9-3-33 . Defendant Life argues that Plaintiff Gutstein's

slander claim is barred by the statute of limitations . Because Williams made the

statement on November 9, 1999, Plaintiff Gutstcin was required to bring his

. LJ~ W~~d1A ~~ ^----'n 5]a__ _ir_rcl_aiSn be fore November 2000 ~ vw~.JVj~ until uc~.clltuZl i7,

2000, before bringing the instant cause of action . [Doc. 1] . Therefore, Plaintiff

Gutstein's slander claim is time-barred .

Plaintiff argues that the `slanderous statement was memorialized in a

newsletter which remained posted on LIFE's campus outside the Academic Affairs

office until January 2001 . Thus, the publication continued and Plaintiff was

entitled to file this claim at any time until January 2002." IDoc . 50 at 47) . Plaintiff

is incorrect. First, Plaintiff Gutstein has brought a slander claim based on the

"Libel, on the other hand, is a "false and malicious defamation of another, expressed in print for] writing . . . tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule" and published to another. O.C .G.A. § 51-5-1 .

AO 79A (Rev .Bld2)

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statements made by Kim Williams. He has not brought a libel claim based on the

newsletter published by a group of students . [Doc. 11 . Moreover, Georgia law is

clear that "actions for injuries to the reputation, such as those asserted by the

plaintiff in the instant case, must be brought within one year from the date of the

alleged defamatory acts. . . ." Brewer v. Schacht, 235 Ga. App. 313, 317, 509

S.E.2d 378 (1998) (quoting Cunningham v . John J . Harte Assoc. , 158 Ga . App.

774, 775, 282 S.E .2d 219 (1981)) ." The only evidence before the court is that Kim

Williams' statement regarding Gutstein's teaching qualifications occurred on

November 9, 1999 . [Gutstein Dep. at 56-57, 105-06; De(. Ex. 5J . Because Plaintiff

/~~ .4.." .~ .~ . .7l.~a...... " .~ :r~ ..~~iu h~ ;i . fact VUWIC/!/ "V~~ " 1VL UW}lUll. IILJ lp~.lI L1LJ J1QJl4W l~lGl~~ " ~ V1VU~. " ll LIVLI . Wp\t Q YV41

afterwards is untimely. The undersigned, therefore, RECOMMENDS that

Defendant's summary judgment motion [Doc. 21] be GRANTED on this claim.

F. Plaintiff Italin's State Law Claims

Plaintiff Dennis Ralin asserted claims for breach of contract and tortious

interference with business relations in the complaint. Defendant Lice moved for

summary judgment on both of these claims, and Plaintiff Ralin has not responded.

Defendant's motion is therefore considered unopposed, pursuant to Local Rule

"This is the true even if the plaintiff did not have knowledge of the defamatory act at the time of its occurrence.

A0 72A (Reva92) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 239 of 296

7.1B, N.D. Ga, with respect to these two (2) claims." See Magluta v. Samples. 162

F.3d 662, 664-65 (11 ' Cir. 1998) (granting a motion for failure to respond is within

the discretion of the district judge); Southern Electronics Distributors. Inc. v. Air

Express Intern . Corp. (USA) . Inc. , 994 F. Supp. 1472, 1475 (N.D. Ga. 1998)

(granting motion as unopposed in accordance with local rule); Welch v. Delta Air

Lines . Inc. , 978 F. Supp. 1133, 1 137 (N .D. Ga. 1997) ("Plaintiffs failure to respond

to Defendants argument alone entitles Defendant to summary judgment on these

claims."). Thus, summary judgment is appropriate on these claims.

In the alternative, the court finds that Plaintiff Ralin has abandoned these

claims because Defendant sought summaryjudgmenion them and riainiiii did not

oppose this relief in his response to the summary judgment motion . See Coalition

for the Abolition of Marijuana Prohibition v. City of Atlanta , 219 F.3d 1301, 1325-

26 (11N Cir. 2000) ("The appellants' failure to brief and argue this issue during the

proceedings before the district court is grounds for finding that the issue has been

abandoned."); Road Sprinkler Fitters Local Union No. 669 v Independent Sprinkler

Cam, 10 F.3d 1563, 1568 (11'h Cir. 1994) (plaintiff's failure to either move for

summary judgment on claim raised in complaint or to respond to defendant's

summary judgment motion on same claim, allowed district court to properly treat

"This rule provides, in pertinent part, `Failure to file a response shall indicate that there is no opposition to the motion.' L. R. 7.1B, N.D . Ga.

A0 77A (Rev.9W)

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claim as abandoned); accord Federal Savings and Loan Insurance Corporation v.

Haralson, 813 F.2d 370, 373 (11"' Cir. 1987) (issues not properly briefed and

argued before the court will be treated as abandoned) .

The undersigned, therefore, RECOMMENDS that Defendant's summary

judgment motion (Doc. 211 be GRANTED on Plaintiff Ralin's claims for breach of

contract and tortious interference with business relations .

G. Damages

Defendant Life moves for summary judgment on the issue of compensatory

damages with respect to the termination claims asserted by Plaintiffs Harman,

Siiverman and Raiin . (uoc. 21 at YU-431 . One of Deiendani's arguments is that

Plaintiffs Harman and Silverman should not recover front and back pay or should

at least be limited in the amount they recover, because they failed to mitigate

damages.

Defendant is correct in noting that a plaintiff has a duty to mitigate damages.

See Albemarle Paper Co . v. Moody, 422 U.S. 405, 417-23, 95 S. Ct. 2362, 2371-74,

45 L. Ed. 2d 280 (1975) . Title VII provides that "JiJnterim earnings or amounts

earnable with reasonable diligence by the person or persons discriminated against

shall operate to reduce the back pay otherwise allowable." 42 U.S.C. § 2000e-

5(g)(1). 'This is appropriate because the purpose of Title VII is to snake whole' a

victim of discrimination, not to provide a windfall.' Sowers v. Kemira, inc. , 701 F.

A0 7?A JRev .8162) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 241 of 296 r r

Supp. 809, 826 (S.D . Ga. 1988 . The Supreme Court has stated that a Title VII

claimant must "use reasonable diligence in finding other suitable employment.

Although the unemployed or underemployed claimant need not go into another line

of work, accept a demotion, or take a demeaning position, he forfeits his right to

back pay if he refuses a job substantially equivalent to the one he was denied.'

Ford Motor Co. v . EEOC , 458 U.S. 219, 231-32, 102 S. C[. 3057, 3065-66, 73 L.

Ed . 2d 721 (1982).

With respect to Plaintiff Harman, the court has already recommended that

summary judgment be granted on his termination claims . Therefore, it is

RECOMMENDED that Defendant's summary judgment motion iDuu . 211 on

Harman's claims for damages resulting from his termination be DENIED AS

MOOT.

With respect to Plaintiff Silverman, Defendant Lite contends that summary

judgment should be granted on his claim for back and front nay because he failed

to make a sufficient effort to find comparable employment. JDoc . 21 at 401.

Defendant argues, "The only job search Silverman has conducted since his

termination is to review newspaper and Internet advertisements for biochemistry

teaching positions at Atlanta metropolitan colleges and universities. He has made

no calls, written no letters, and made no applications, other than to the Fulton

AO 74A (R&vAW)

a.r~ . iwcvamoe... o .° v n.o. . a~~z~ve Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 242 of 296

County School system, the Cottage school, and a company called Cryolife .° ld.l.

This is the extent of Defendant's argument.

Based on the lack of evidence presented Defendant, the court finds that

there are genuine issues of material fact yet to be resolved on the challenge to

Silverman's damages recovery if Defendant is found liable . Defendant

acknowledges [hat Silverrnan made some effort to find comparable employment,

and a reasonable jury may conclude that Silverman satisfied his duty to mitigate

his damages. Accordingly, the court RECOMMENDS that Defendant's motion for

summary judgment be DENIED on Plaintiff Silverman's claim for front and back

pay.

Defendant Life next argues that summary judgment should be awarded on

Plaintiff Ralin's claim for front pay and back pay after he found employment which

paid him more than his job with Life University. (Doc . 21 at 43]. The Eleventh

Circuit has stated that any "monetary award of front pay [should be] calculated to

terminate on the date a victim of discrimination attains an opportunity to move to

his `rightful place." Weaver v. Casa Gallardo, Inc . , 922 F.2d 1515, 1529 (11th

Cir.1991) (citations omitted) . Defendant writes, "When Ralin's employment with

Life terminated on January 14, 2000, he was making $42,000 .00 a year. Ralin

went to work full-time for Gilmer County Schools in August 2000, at a salary of

$57,000 .00 a year." old.] . Defendant's argument is correct, and Plaintiff Ralin has

A0 72A (Rev .8W) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 243 of 296

not responded to this argument. See Coalition for the Abolition of Marijuana

Prohibition , 219 F.3d at 1325-26; Magluta, 162 F.3d at 664-65. Therefore, the

undersigned RECOMMENDS that Defendant's summary judgment motion be

GRANTED on Plaintiff Ralin's claim of back and front pay after August of 2000,

when he began working in a higher paying position .

IV. Conclusion

In summary, the undersigned RECOMMENDS that Defendant's summary

judgment motion [Doc . 21] be GRANTED on: (1) Plaintiff Harman's Title VII claim

of religious discrimination in his termination; (2) Plaintiff Harman's ADA claim that

he was icrrainaicu urn the uasizi ui a uisauiiiiy ; j3j Fiainuff Gu[siein's siaie jaw

claim of slander ; (4) Plaintiff Ralin's state law claims for breach of contract and

tortious interference with business relations; and (5) Plaintiff Ralin's claim of back

and front pay after August of 2000 .

Because summary judgment is appropriate on Plaintiff Harman's ternaination

claims, the undersigned also that Defendant's summary judgment

motion [Doc. 21 1 be DENIED AS MOOT on Plaintiff Harman's claims for damages

resulting from his termination.

The undersigned that Defendant's summary judgment

motion IDoc . 21 ] be DENIED on: (1) the Title VII claims of a religiously hostile work

environment asserted by all four (4) Plaintiffs; (2) Plaintiff Silverman's Title VII

A0 72A (R2v.8I82) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 244 of 296

claim of religious discrimination in his termination ; (3) Plaintiff Ralin's Title VII

claim of religious discrimination in his termination ; (4) Plaintiff Gutstein's Title VII

claim of religious discrimination with respect to the reduction of his hours and his

eventual termination; (5) the ADEA claims asserted by Plaintiffs Ralin and Gutstein

that they were terminated on the basis of their age; and (6) Plaintiff Silverman's

claim for front and back pay .

SO RECOMMENDED, this p 131 day of DECEMBER, 2002.

JANET F. KING / irnrImcn ememcc ReM !" 7cTnSTF tfI11f1C

AO )TA (Rev.8W)

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EXHIB IT / ATTACHMENT

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~CHAM~AIYSN~; WBESTLHY6. A Time Warner Comp~y

MEMO

TO: Dr. Harvey Schiller

CC: Eric Bischoff David Payne Matt Stroer Bill Busch

FROM : Diana Myers&

RE: Talent Budget Summary

DATE: March 31, 1999

The following is a synopsis of the Talent Contract Changes for March 1999. The back up - documentation in the form of the Talent Contract Summary has been forwarded directly to Matt Stroer.

We added two (2) new talent: $895,000 (David Abbott, Brian Yandrisovitz)

We negotiated increased contracts for two (2) talent : $115,000 (Glenn Gilbertti, Ron Reis)

Impact to WCW Total Talent Commitment (increase): $1,010,000

With this increase and our variables, we are currently $1,858,000 under budget for 1999 .

P~,~NTIT-f' S EXH~6~t

WCW 019229 ... CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 247 of 296

EXHIBIT / ATTACHMENT

a - (To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 248 of 296 t

World Championship Wrestime A Division of Turner Sporfs One CNN Cmrer Pnr ins,,/, Adania . GA JoJ4B-5j66

MEMO

TO : Dr. Harvey Schiller

CC: Eric Bischoff David Payne Matt Stroer Bill Busch

FROM: Diana Myers ACC/

Talent Budget Summary

DATE: May 28, 1999

The following is a synopsis of [he Talent Contract Changes for May 1999. The back up documentation in the form of the Talent Contract Summary has been forwarded directly to Matt Stroer.

We added thirteen (13) new talent: $457,600 (David Fliehr, Emory Hail, and eleven trainees)

We negotiated increased contracts for three (3) talent: $51,714 (lacobus Strauss, and two(2) former non-contract talent Scott James and Steve James)

We terminated two (2) contracts: $450,000 (Steve McMichael, Kevin Wacholz)

With this increase and our variables, we are currently $100,000 under budget for 1999.

PLAINTIFF'S EXHIBIT -7 4P U

WCW 019227 `~ w rime w..' . comwnr CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 249 of 296

EXHIBIT / ATTACHMENT

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:hoff Bill Susch

FROM: Diana Myers`ll/

DATE: June 9, 1999

RE: New ICAs and Trainees

Name Salary (l" year)

Coroell, Richard (trainee-referred by Kanyon) $26,000 Davis, Marcisl (trainee) $31,200 Durham, Michael (Public Enemy) $170,000 Fliehr, David (David Flair) $45,000 Forrester, Ryan (trainee-referred by Kanyon) S20,800 Funk, Allen Eric (trainee) $31,200 Gruner, Pete (Billy Kidman) $300,000 (increase from $125,000) Hail, Emory (Emory Hale) $85,000 Helms, Gregory Shane (referred by Kanyon) $45,000 Hugger, Jon (trainee) $15,600 c James, Scottu . (Scott~..___t_ l1,SiT!SLTOIIQlI $ 52,143 (increase from $31,286) James, Steve (Steve Armstrong) $ 52,143 (increase from $31,22i(i) Jiudrak, Mark Robert (trainee) $39,000 Jones, Allen (trainee-referred by Kanyon) $20,800 Massengale, Jason (trainee-referred by Kanyon) $20,800 Moore, Shannon (referred by Kanyon) $45,000 Norris, Harrison (trainee) $39,000 Palumbo, Charles (trainee) $39,000 Petty, Ted (Public Enemy) $170;000 Rodman, Dennis $1,000,000 Roman, Sammy Lee (trainee) $26,000 Sanders, Michael (trainee) $31,200 Siaki, Sonny Uaita (trainee) $31,200 Skipper, Eliz (trainee) $39,000 Strauss, Jacobus (Jakes) $75,000 Thornton, Randy (Swoll) $350,000 ($50k signing bonus) Tilton, Kevin (trainee) $15,600 Wilson, Luther (referred by Kariyon) $45,000 Yokley, Jay Brett (trainee) $15,600 Yun, James (trainee-referred by Kanyon) S20,800

WCW 018865 .. . ..__ CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 251 of 296

EXHIBIT / ATTACHMENT

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Diana

From: - ' on, Georgia Se , ember 03, 1999 1 :57 PM World Championship Wrestling To: Edwards, Don ; Prince, Greg; Lipscomb, Dee ; Davidson, Amy A L1nslon of 7 umer sports Busch, Bill ; Dillon, JJ ; Juster, Gary ; Myers, Diana One CNN Center subject: Talent Summary Box o5366 Atlanta. GA 3o348-5366

CONFIDENTIAL

The following is a synopsis o1 the Talent Contract Changes for November 1999:

We added two '2) new talent: Vito Lograsso (E120,000 plus E72,000 signing bonus), Slacy Keibler ($15,000 plus $250 for non-TV and E500 N events)

We negotiated increased contracts for two (2) talent: Tonga Fifila ($175,000 plus E1,500 per day over 100 and $300 per day wrestling in Japan), David Fliehr ($125,000 and $1,000 for each PPV)

We are in the process of negotiating a decreased contract for one (1) talent: Lash Hufiman ($240,000 plus $2,000 (or each day over BO)

We terminated twenty-two (22) contracts: (Chris Adams, Brian Adams, Scott Mtol, Brian Bernick, Adam Birch, Amy Crawford, James Gibson, Steve James, Rob Knapik, Ray Lloyd, Jeremy Lopez, Juan Banos, Sonny Onoo, Ron Reis, Dean Roll, Jeremiah Ross, Hector Segura, Jason Spence, Kenny Slasiowski, Dave Taylor, Barry Windham, Kendall Windham) Please trea( this e-mail as you would any other confidential document .

Thanks, GA

PLAINTIFF'S EXHIBIT

0 WCW 019238 A 'M, W.. Comp' CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 253 of 296 L r t MEMO

TO: Dr. Harvey Schiller

CC: Bill Busch David Payne Matt Stroer 7J Dillon Greg Prince Dee Lipscomb Amy Davidson

Diana FROM : Myers 0~'

RE; Talent Budget Summary

DATE: November 1, 7999

The following is a synopsis o1 the Talent Contract Changes for October 1999. The back " up documentation in the form of the Talent Contract Summary has been forwarded directly to Matt Stroet.

We added three (3) new talent : $800,000 (estimate) Donald Harris (200,000), Ronald Harris (200,000), Jeff Iarrett (400,000)

We negotiated increased contracts for three (3) talent: $166,714 (Ferry Sattillo, Dale Torbbrg, Jerry Tuite)

We negotiated decrj& contracts for one (l) talent: $150,000 (Ian Hodgkinson)

We terminated twelve (12) contracts: $1,943,000 (Bryan Clark, Barry Darsow, Ryan Forrester, Chad Fortune, James Fullington, Lash HufSnan, Mark Johnson, Ed Leslie, Robert Smedley, Kevin Tilton, Eric Watts, James Yun, Johnny Green)

With this decrease and our variables, we are currently $-0.85 million over budget for 1999.

w ~w~cwr,q WCW 019226 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 254 of 296

Igo

MEMO

TO: Dr. Harvey Schiller

CC: Eric BischolT' David Payne Matt Stroer Bill Busch Greg Prince

FROM: Diana Myers~

Talent Budget Summary

DATE: September 1, 1999

The following is a synopsis of the i aicni Contract Changes for Aueust 1999. The back " up documentation in the forth of the Talent Contract Summary has been forwarded directly to Matt Stroer.

We added six (6) new talent: $830,000 Brian Hemick (45,000), James Gibson (45,000), Jeremy Lopez (45,000), Charles Spencer III (45,000), Ray Lloyd (150,000), Dustin Runnels (500,000)

We negotiated increased contracts for two (2) talent : $270,000 (William Brenneman, Ian Hodglcinson)

We terminated six (6) contracts : (Ted Petty, Michael Durham, Scott Levy, $796,286 Denise Riffle, John Watson, Chase Tatum)

With this increase and our variables, we are currently $63 million over budget for 1999.

WCW 019225 A Twee Wa~ C-p~ CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 255 of 296 r

World Championship Wrestling A Division of Turner Sports imc hiii Cenw Box jos366 0 AdanlA GA j0348-5366 MEMO

TO: Dr. Harvey Schiller

CC: Bill Busch David Payne Matt Stroer Il Dillon Greg Prince Dee Lipscomb Amy Davidson

FROM: Diana Myers

Talent Budget Summary

DATE: September 30, 1999

" The following is a synopsis of the Talent Contract Changes for September 1999. The back up documentation in the form of the Talent Contract Summary has been forwarded directly to Matt Shoer.

We added three (3) new talent: $ 170,000 Clare Cuwfello (15,000 plus 250.500 per event), Ann-Marie Crooks (50,000), Nora Greenwald (105,000)

We terminated twenty-two (22) contracts : $2,213,400 (Yoshihiro Asai, Scott Bednarski, Jose Camera-Gomez, Martial Davis, Art Flores, Bret Hammer, Kiri Hankton, Theodore Hams, Greg Hunke, Percy Miller, )amen Mitchell, Manuel Ortiz-Pariida, Randy Thomton, Robert Vick, Brett Yokley, Barry Horowitz, Harrison Nortis, Joe Dorgan, Scott Chasser, Craig Mally, Scott Norton, Mike Enos)

With this decrease and our variables, we are currently $5 .6 million over budget for 1999.

. .. . WCW 019222 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 256 of 296 l

MEMO

TO: Brad Siegel

CC: Greg Prince Don Edwards Amy Davidson Jennifer Carson

FROM : Diana Myers{'jJ CJ RE: Talent Budget Summary

DATE: October 31, 2000

The following is a synopsis c : c Talent Contract Changes for October 2000.

" We terminated three (3) contracts: (Scott Hall, Mibal Gonzalez, Diet Hart)

We added three (3) contracts: Lenita Erickson ($125,000 plus $500 per event) Scott Oberholzer ($750 per week plus $300 per event) Chris Hams (5750 per week plus $300 per event)

We negotiated an increase for one (1) contract : Torrie Wilson ($1,600 for each day over 125 days per contract year)

As a result of these changes, we now estimate that our ?000 Talent Payroll is 538.1 million ($1 .935) under the forecasted amount of $40,035,000 .

WCW 019218 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 257 of 296 f

w«+a ch,p;ahp w,eru9 ..*- -. ofTa:.T.:: :NW CEN7FRSONE Box IoSj66 Ad-3m GA 3oj48-53M MEMO

TO: Brad Siegel

CC: Bill Busch Scott Wilkinson, Fsq. Gary Justcr JJ Dillon Greg Prince Don Edwards Felicia McDade Amy Davidson , ._ .

FROM: Diana Myers-

RE: Talent Budget Summary

DATE: March 1, 2000

The following is a synopsis of the Talent Contract Changes for February 2000.

We added one (1) new talent Daniel Covell ($75,000)

We negotiated increased contracts for three (3) talent (Evan Karagias, Shannon Moore, Shane Helms) x__. . . We terminated fom' (4)contracts : (Mark Hildrcth,-Ann-Marie Cooks, Bobby Eaton, Troy Martin)

These changes have resulted in an increase in our current talent payroll to $4 .2 million for 2000. This is in comparison to our current forecast of $4035 million

WCW 019217 ;y,~va,:q . CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 258 of 296

faof Lciral nd Burinca Again diammrcn2cumermo

World C7umpionship Wrestling A Division of Turner Sports ONE CNN CENTER Box iosj66 Arlann, CA 3o348-5366 MEMO

TO: Brad Siegef

CC: Greg Prince Don Edwards Felicia McDade Amy Davidson

FROM: Diana Myers CD'

Talent Budget Summary

DATE: May 9, 2000

The following is a synopsis of the Talent Contract Changes for April 2000.

We added seven (7) new talent and one (<) way.. ...,., se...... rs_,... . " Mike Altonso ($350,000 plus $2,000 for house shows and $3,000 for PPVs), Chris Candito ($104,000 plus $500 per event), Troy Martin ($350,000 plus 51,750 for house shows and $2,500 for PPVs), Shawn Stipich ($78,000 plus $500 per event), Troy Endres (Trainee-$600 per week), Allison Pfau ($15,000 plus $250 for PR or non-TV events and $500 for TV events), John Riker ($750 per event), Carol Pedigo (wardrobe-$1,000 per month plus $250 per event)

We terminated two (2) contracts: (Rob Kellum, Sione Vailahi)

We negotiated increased contracts for. (Richard Fliehr, Kimberly Falkinburg, Ian Hodglcinson, Shannon Spruill, Sharmell Sullivan, Vanessa Bozman)

As a result of these changes, we now estimate that our 2000 Talent Payroll is SI,100,000 ($47,450,000) over the forecasted amount of S40,350,000.

WCW 0792!5 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 259 of 296

World Championship Wrcsrling A Diruim of Turner Spurn ONE CNN CENTER Box io5j66 Adann, GA 3°318-53 MEMO

TO: Brad Siegel

CC: Greg Prince Don Edwards Felicia McDade Amy Davidson

FROM : Diana MyersQ~

Talent Budget Summary

DATE: June 13, 2000

The following is a synopsis of the Talent Contract Changes for May 2000.

we added one (1) new talent: Lance Evers ($245,000 plus $750 per event)

We terminated six (6) contracts: (Jacobus Strauss, Brad Cain, Sonny Siaki, Dionicio Castellanos, Brad James, Clare Cuwfello)

We negotiated increased contracts for: (Lenny Carlson, Jerry Tuite, Jeff Jarrett, Chris Ford, Norman Smiley, Vito LoGrasso, Ron Hams, Don Harris, Chuck Palumbo) .

As a result of these changes, we now estimate that our 2000 Talent Payroll is $2.65 million ($43,000,000) over the forecasted amount of $40,035,000 .

7 .w r~ W...a ~s ..s WCW 019214 CONFIDENTIAL J Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 260 of 296

EXHIBIT / ATTACHMENT

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011

BOBBY HARDWORK WALKER BOBBY Walker PrMefalonal Wrertla 59 Gleneagles Dr . Fayetteville, GA.

Telephone 770-716830

TO: ERIC BISHOFF SUB. Racial Discrimination FROM: Bobby Walker

MARCH 01,1998

DEAR SIR:

In the past Terry Taylor has made statements to me and others how he felt about blacks. Since he has had the top booking job, I have had nothing but problems. Ever since I talked to Terry in Orlando F7., about my future in WCW, the problem has gotten worse. I feel like 1 lost my job because of Terry Taylor deep dislike for Blacks. I have alwss tried to talk to you about any problems . 1 want to know from you why 1 lost my job? Please contact me at 770-716-6830. 1 look forward to hearing from you soon. Thanks in advance for your assistance in this matter.

Bobby Walker.

CC: ERIC BISHOFF

WCW 009452 CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 262 of 296

EXHIBIT / ATTACHMENT

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03t Page 263 of 296 ... t BOBBY HARDWORK WALKER BOBBY walker Prolessbnal Wrestler 59 Gleneagles Dr. Fayetteville, GA.

Telephone 770-716830

TO: DR HAVEY SCHII..LER SUB. Racial Discrimination FROM: Bobby Walker

MARCH 01,1998

DEAR SIR:

I know that you are a very busy man. Could you Please arrange a meeting with me, to talk about this problem. In the past Terry Taylor has made statements to me and others how he felt about blacks. Since he has had the top booking job, I have had nothing but problems. Every since I talked to Terry in Orlando Fl., about my future in WCW, the problem has gotten wrost. I feel like I lost my job because of Terry Taylor deep dislike for Blacks. I want to know why I lost my job? Please contact me at 770-716-6830. I look forward to hearing from you soon. Thanks in advance for your assistance in this matter.

Bobby Walker.

CC: DR. HAVEY SCHILLER

U PLAINTIFF'S< EX IBIT P00593 . . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 264 of 296

EXHIBIT / ATTACHMENT

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Page 1 I 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

PEZAVAN WHATLEY, ) 4 Plaintiff, )

VS . ) CIVIL ACTION FILE NO . 1 :01-CV-0916-CC WORLD CHAMPIONSHIP WRESTLING, ) 7 INC ., )

8 Defendant . )

12 DEPOSITION OF PE2AVAN WHATLEY NOVEMBER 14, 2001 13 10 :09 A.M .

25 CERTIFIED COURT REPORTERS he Pinnacle, Suite 500 . 3455 Peachtree Road, N .E . " Atlanta, Georgia 30326 " www.premierrptg .com ene.917 .1 0 0 n Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 266 of 296

" C ` Page 62 1 conversation, that he would confer with JJ Dillon . .! - .., Q ~ . ..at was "r . Bush' ~ race?

3 A White .

4 Q And what was Mr . Goodley's race?

5 A Black .

6 Q Do you know what happened after that meeting

7 with Mr . Bush?

8 A Yes -- only guesswork, but -- what

9 happened, but --

10 Q What do you believe happened?

11 A We talked to Mr . JJ Dillon, who stopped all

12 of the black people from being -- moving up in

.1 i3 positions, ar...4. I .. .. stuck .

14 Q Why do you believe that?

15 A Because Mr . JJ Dillon is as racist as they

16 come .

17 4 Why do you believe that?

18 A Because I've known Mr . Dillon for the

19 longest time .

20 Q What has he done to make you believe he's

21 racist?

22 A Well, I worked with him at a time when we

23 were in a bathroom listening to country and western

29 music, and the country and western music involved a 25 song and the word "nigger ." He thought that was

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Page 63

1 great .

0 Anything other than that? '

3 A Mr . JJ Dillon worked with me at times, with

4 Mr . James Crockett, and we were also given positions

5 to move up, but every time that I had to participate

6 in -- me, myself had to participate in any activity in

7 which I was under Mr . Dillon's hand -- it was always

8 racist, nigger .

9 Q Let me back up for a minute . When was this

10 incident with you and Mr . Dillon and country western

11 music in the bathroom? Do you recall when that was?

12 A That was in the 'BOs .

13 0 In the 180s?

14 A Yes .

15 Q And you just said as far as working in

16 positions involving Mr . Dillon, it was always racist?

17 A With me .

18 Q What did he do? Did he say anything racist?

19 A He just stopped your opportunity to go

20 forward on your position .

21 Q What evidence, Mr . Whatley, do you have that

22 JJ Dillon was responsible for stopping you from going i 23 to any position?

29 A I think he gave the talk to him . He got --

25 Q I don't want to know, Mr . Whatley -- I want

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 268 of 296 r Page 74 1 assisting with Keith on editing and passing out 1 2 papers .

3 Q Do you know who made the decision to let I 9 them do this work as assistant booker?

5 A No, I don't . I don't know . I could only

6 speculate . I don't know for sure .

7 Q Now, you talked about earlier who you talked

8 with in terms o£ wanting to be a booker?

9 A Yes .

10 Q You mentioned Mr . Hamilton . We talked about 11 that . I 12 A Yes . I

13 Q You mentioned Tim Goodley -- III

14 A Yes .

15 Q -- and a meeting that you had with Tim. Was I 16 that the only time you talked with Mr . Goodley about I 17 being a booker?

18 A No .

19 4 Were there other times?

20 A Yes .

21 Q What did you say to Mr . Goodley? Those --

22 A Same thing I told him at the beginning .

23 Q Which --

24 A That we have -- we have and -- we have not

25 had any black bookers in the main events of the major Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 269 of 296 t

Page 95

1 Mr . Bruce were assigned trips in which that he could

2 make it back in time for his family or just one or two

3 days at different times . But because of the fact that

4 my availability of being able to drive, after my

5 first-proven shot that I could drive a truck -- look

6 how this case is going -- that I could drive -- that

7 I could go then to be trusted to drive their truck and

8 their equipment from one designated point to another . 14 1 9 Q Anything beyond what you've just told me as 5 10 far as the assignments of trucks that you believe was

11 discriminatory, or is that everything?

12 A Yes .

13 Q That's everything, or there's more?

19 A No . I mean, there's more .

15 Q What else is there? Please tell me .

16 A In our -- Mr . Hamilton, part of his job was z 17 to go at the television -- with the television, when

18 the television went out and -- at the beginning, and

19 our assignment was to take the people that applied to

20 -- that wanted to be wrestlers, into the training

21 facility both at Jonesboro and at Carroll Drive, and

22 at this time there was a man employed also with us,

23 because of Mr . Hamilton's absence sometimes, was

29 Blackjack Mulligan, and during the time we accepted as

25 trainers the people that applied into our jobs, and

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Page 96 1 when Mr . Hamilton arrived back and he first saw the

2 new recruits, his first comment was, oh, a different 3 color .

4 Q All right . When was this?

5 A When we were in the training facility in 6 Jonesboro .

7 Q So this is before you moved to Carroll B Drive?

9 A Before we moved to Carroll Drive .

10 Q Do you know what he was referring to?

11 A Yes .

12 Q What was he referring to? 13 A Before there was never any -- maybe one, 19 two Afro-Americans or nonCaucasian people there . The 15 applications that we received when he was there, 16 happened to include more than that, and which we 17 accepted, and they were in the facility when he came 18 and turned the corner . This was not something that he 19 expected .

20 Q Did he do anything about it other than to

21 say the comment that you just said?

22 A What was done a little later is that they 23 were trimming the fat, multimillions of dollars . They 24 were trimming the fat by cutting four of the black 25 guys that were down there and let two of the white

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 271 of 296

Page 97

1 guys go, because the white guys were not talented .

2 The black guys were very, very, -very `ale ;-_ed, and

3 they said we had too many down there . Too many, I

4 mean too many people of different color .

5 Q Did someone say that to you?

6 A We knew it, and they said it .

7 Q Who said that?

8 A Mr . Mulligan told us as a repeat of what Mr .

9 Hamilton had said .

10 Q So in other words, Mr . Mulligan told you

11 that Mr . Hamilton had said something about the color

12 of the trainees?

13 A Mr . Hamilton had spoken about F1~~...E 0y., r, f

14 the trainees before that period of time, but this

15 particular instance, what we're speaking of, that's

16 the way it went .

17 Q Do you remember who it was who was cut?

18 A Troy Hamilton . I can't remember his tag

19 team partner . Very, very highly talented young man .

20 Mr . -- I can't remember his name . I can't remember

21 his name . Very well built, muscular bodybuilding '

22 phenomena that was in town that wanted to become a

23 wrestler . And other individuals, I can't remember

29 their names, but they made it very difficult for them

25 to stay at the facility and still wrestle .

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Page 101

1 A It was as -- it was true for us to train

2 everybody really hard, but the e:::phasis was exactly o . .

3 the -- on the black individuals that they knew that

4 they could really pound on at the same time as you

5 would be -- white individuals would be given a

6 routine, whereas the black was to be given the

7 routine . i 8 Now, if a white individual doing the a 9 routine faltered, slumbered, could not get it done, he 10 was given extra opportunity to get hisself together so

11 that he could be able to -- to keep going on . If a

12 black individual stumbled, faltered, or -- he didn't

13 want to be there ; he had a bad attitude ; they couldn't i 19 teach him; he couldn't learn it .

15 Q Who was in control of this? Wasn't it the f Y 16 trainers who were in control of this, including

17 yourself? s i 18 A Including myself .

19 Q So you took part in the process of what

20 you're claiming? '

21 A My process was that you were wrong . He can

22 do this . They're great talents sitting right here .

23 Q Mr . Whatley, let me interrupt you, because I

29 want you to try to make yourself clear . I'll let you

25 finish, but I don't understand what it is you're

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-~ - Page 132 1 wrestle, which would provide me with more money .

4 Who told you that?

3 A From Mr . Sullivan himself .

4 Q He came to you and told you that?

5 A Yes .

6 Q Did he tell Mr . Bruce and Mr . Wenner that 7 too?

8 A No . Mr . Sullivan told me .

Q Just you?

10 A Whether he told Mr . Bruce and Mr . Wenner, I

11 can't remember, but I know what he told me . 12 Q So he came to you and said, I'm going to

13 give you more chances to wrestle?

14 A Now you're going to get chances to wrestle .

15 He and Mr . Mike Graham both, who were in the booking

16 position and assisted booking .

17 Q Why is that discriminatory discipline? 18 A Well, because of the fact that they -- that 19 Mr . Bischoff -- during this period of time we wrestled 20 in a place called Atlanta, Georgia, the Qmni, and Mr . 21 Bischoff showed expressively his desire about 22 discrimination, because he took not only myself but 23 every black off the card, and he was quoted as saying,

24 this is white night .

25 4 When was this? p

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 274 of 296

Pacer lii t

1 A In the Omni, when Mr . Shuler was in charge

2 and at our first big Omni show .

3 Q Who else did he take off the card, according i 9 to you, besides you? Who else?

5 A Jacqueline -- the female, Jacqueline, who

6 was Mr . Sullivan's walk-in .

7 Q His valet?

8 A His valet . The Harlem Heat, Harold Hogue .

9 That was all, because that -- that wasn't any other

10 blacks on the card . Any other blacks on the card that

11 had been wrestling previously .

12 Q Did Mr . Bischoff make this comment to you?

13 A Mr . Bi.schoff made that comment to Mr .

14 Sullivan .

15 Q Were you there when he made that comment?

16 A No .

17 Q How did you hear about that comment?

18 A Mr . Sullivan came out and told us why we °

19 weren't going to be able to work .

20 Q What did he say?

21 A He said that this is going to be -- he took S 22 off Jacqueline . He took off the Heat . He took off

23 Harold Hogue . He took off any other persons except

24 for the -- what he wanted, and he told us, just

25 before he left, told us, turned around and say, Eric,

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Page 134 1 said this is white night . In Atlanta, Georgia .

Q Any O :.iie_ I11Jt.iNii .2 .beyond that, MT_

3 Whatley?

9 A That's all of them that I can remember right

5 now, sir .

6 Q Is there anything you think that would help

7 you remember other instances?

8 A I'm trying to, but that's all I can

9 remember .

10 Q Why don't you take a minute and see if you

11 can remember anything more?

12 A I spoke up to Mr . -- Mr . Randy Savage, who

13 was one of tie prominent :;rest-ler-, at the time, about

14 having the opportunity to wrestle and to book, to be

15 the booker at that time, who was Kevin Sullivan . I

16 mean, Kevin Nash . Who at that time, Mr . Savage was

17 one of the few people that knew the -- about

18 qualifications of being the booker and that -- and

19 that I had them .

24 He spoke to him about him -- about doing

21 it, and at that time Mr . Nash could have done it if he

22 wanted to . And he did not do it, and when Mr . Savage

23 came back to tell me the reason why he did not do it,

24 he included the fact that they were making some

25 changes . But also he said, but the real changes, you

PREhIIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 276 of 296

Page 135 1 know . And we both pointed, and we parted .

'J !l Thin was Whqt Mr Ravarto cairl to vnn9 1

3 A Mr . Randy Savage . When we discussed

4 wrestling and booking as one of the things that I

5 could continue doing on that job . Oftentimes headline

6 wrestlers go to the booker and the -- and express,

7 this guy can do it . This guy can do it . Randy Savage

8 was a guy highly respected . His opinion was highly

9 noted . He done a lot in the business, and so -- even

10 more so than the guy that held the position in the

11 job .

1z And so when Mr . Savage came back, it was i s 1 1z t-,IA to ma F1PC_'.gll$P thP_V'TP r7(llTla tnmaka gnmg rha.ngas ;

14 but also in the conversation, we knew that changes

15 that were being made had nothing to do with my

16 request . Changes was that they didn't want me in

17 there and that I was black .

1g Q He didn't say that, but that's what you

19 understood him to be saying?

20 A Well, he pointed to skin .

21 Q Did he say that's what Mr . Nash said, or did

22 he say that's what he believed was going on?

23 A He told me what Mr . Nash said about the

24 changes and that there were going to be those changes

25 made . I can't remember verbatim, word for word .

PREMIER REPORTING Case 1:00-cv-01716-CCr Document 125 Filed 02/24/03f, Page 277 of 296 Page 139

1 A Right now .

MR . PONTZ : Well, I'm qoinq to reserve

3 the right to reopen this deposition when Mr . Whatley

4 decides he can remember some other stuff, but I'm

S taking him at his word that that's everything he knows 6 about .

7 BY MR . PONTZ :

8 Q Mr . Whatley, you also indicated in your

9 complaint that you believe you were subjected to a

10 racially hostile work environment?

11 A Yes . i 12 Q What do you think made your work environment

13 racially hostile? What things happened at the

14 workplace that you think made it racially hostile? `

15 Other than what we've talked about? You don't need to

16 repeat the things we've talked about, although you can

17 point them out to me if you want .

18 A I found it necessary to try to advance

19 knowledge or equip young black wrestlers on some of

20 the things that they were going to be facing when they

21 got into the business . Not only was that

22 objectionable from Mr . Hamilton's point of view, but

23 it was objectionable to the assistant booker's point

24 of view, objectionable to the booker's point of view,

25 and objectionable to Mr . Bischoff's point of view .

PREMIER REPORTING Case 1:00-cv-01716-CCc Document 125 Filed 02/24/03 Page 278 of 296

p Page 140 ;.- II 1 Q Well, what was racially harassing about

2 that?

3 A Well, they would rather for those kids not

9 to know those things than to be told those things .

5 They would not -- they would rather for them not to

6 know that they weren't going to get an equal

7 opportunity and that they were going to be twice as

8 good as the white boys even to be able to look at, and

9 they didn't want them to know that even though they

10 could be twice as good as the white boys and wrestle

11 and have talent, charisma, talking and everything,

12 they still weren't going to be given the chance, even

13 though they colored it like you were going to be --

19 like they was going to give an equal opportunity to

15 them all . Me being in that business and knowing that

16 before, knew that they were lying .

17 Q Mr . Whatley, what I'm really asking you is,

18 what happened in your workplace -- what happened to

19 you in your efforts to do your work and provide your

20 services that you believe was racially hostile and -- i

21 A Okay . lil

22 4 -- affected your ability to perform your 23 job? `

24 A During the time the four -- when they made ~r-- 25 the cutbacks, when they made the cutbacks on the four Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 279 of 296

Page 142

1 A Well, being a man of the experience that I

2 had, Mr . Hamilton first of all, who was in iuii

3 knowledge that I was a fully capable and able person

4 to be able to do not only my job but the job that he

5 was doing and to be booker . Well, Mr . Hamilton made

6 no effort whatsoever to promote the fact that he had

7 an individual that could help with the company

8 overall . Mr . Hamilton rather kept his mouth shut so

9 that no fur is fluffing .

10 Q Anything else that Mr . Hamilton did that you

11 believe made a hostile work environment for you?

_ N 12 A The fact that when we were in Carroll Drive

13 and wrestling, we would point out the different

14 individuals who working with them day by day, that

15 were really coming along real fine . Well, Mr . Ii

16 Hamilton came out there, and he would look under the

17 surmise of whatever period of time he was out there ;

18 an hour, two hours, or whatever, and then come back I

19 and make a decision on which ones he thought that was

20 good or bad, you know .

21 And oftentimes -- oftentimes nonCaucasian

22 or off-white or African people were -- were given

23 positions of -- he could stay down there and train

24 more, but it's always a little this that was wrong or

25 a little that, that was wrong . Everybody had

PREtvIIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 280 of 296

Page 143 i

1 something wrong . You know, so it should not be just `

2 one group that should have been -- rh,~r ghcuy~ tiu-.~ '

3 been identified as having something wrong . ;

9 They just whenever the administration

5 didn't want an extra black in there, they make up a

6 reason . He don't come on time . Some didn't come at

7 all, you know, and still were welcome back . Also,

8 which was -- this is -- the terrible thing is that

9 they would bring down Keith and that young lady that I

10 can't remember her name to look at the talent, who had

11 no idea what's going on .

12 And myself, especially myself, who were

13 CaDab1E O f doing a lot Of things _for t_h_o_ young mangy

14 our opinions were swept under the rug . I mean, when I

15 mean our opinions, I mean my opinion on who could be

16 doing -- like you could have a black man down there,

17 six-eight, 325 pounds, undeniably, undeniably money

18 walking, and because they would bring individuals down

19 there that had no idea about what was going on or what

20 the training, all they do is looked and thought he was

21 cute or had the hair long enough or they dyed their

22 hair blond . They had enough steroids stuck in their

23 ass that they was the ones that would be chosen over

24 individuals with talent .

25 Q Anything -- I'm sorry . Go ahead .

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 281 of 296 c

Page 144 1 A No . Go ahead . t! Q No . Finish what you're saying, please .

3 A That was it . That was it .

9 4 Anything else that you think was done that

5 made your work environment a racially hostile work

6 environment? Besides what you've already told me?

7 A When I chose an individual that was -- that

8 was talented enough to go around and -- and

9 especially, you know, when I chose a black individual

10 that was good enough to be talented, useful, could

11 draw money, that was like a mark against him . II 12 Q Did you ever choose any white individuals B 13 that you I- thought were good? 14 A I tried to be fair .

15 Q And what happened to the white guys that you

16 chose that were --

17 A Quite a lot of them were chosen .

18 4 And none of the black guys you pushed were 19 chosen?

20 A No black guy that I endorsed was ever used

21 on a WCW main event on the assistant basis .

22 4 Who were some of the African-American

23 trainees you endorsed?

24 A Like, Mr . Bobby Walker is an individual I - 25 now, Mr . Bobby Walker had a talent that no other

....c~rrco ornnDrn~rn Case 1:00-cv-01716-CCr Document 125 Filed 02/24/03 Page 282 of 296 Page 161 a 1 hold you on the sideline, especially me, because they

2 didn't want you to -- to display the guy giving

3 talent that you could do what was actually being

4 required of you to do .

5 Q Anything else that you believe supports your 6 for claim a hostile work environment on the basis of 7 race?

8 A Okay .

9 Q What else?

10 A Because of the fact that you -- I wrestled

11 in several -- I mean, I participated in several

12 different jobs in the WCW organization, it was not

13 unusual for you to hear amongst the work place, you

14 know, the N-word, or darky, or if you went and was

15 sitting down beside another employee that was an

16 individual that was there and the employee happened to

17 be a white female, better make sure that you were not

18 sitting down there for enticement of the white female .

19 Other white males who were always looking at that,

20 would come over and sit beside you.

21 If I was in a conversation with another

22 black individual, or another couple other black

23 individuals, it was not unusual for Terry Taylor,

29 Diamond Dallas Page to come over with a joke . Hey,

25 not more than two or three black guys in a -- at one

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 283 of 296

Page 167 1 incidents with some lighting employees, is there

2 anythi.^.g else?

3 A Well, also in security, Doug Dellenger, who

4 was head of security from start to beginning, came up r 5 and told one black individual they were playing the 6 music over the loudspeaker and turned it off and said, 7 don't we want to hear no more of that nigger music . when 8 And the individual turned around and got mad, he

9 said, 2 don't know what you got mad ; we could say that

10 to Fez and it'll be all right .

11 Q Were you there when that happened, Mr .

12 Whatley?

i3 A :`:C . I ..c.., Just told about that after it

14 happened . IF

15 Q Who told you about that?

16 A The people that it was told to .

17 Q Who? Who? Names?

18 A The wrestle -- was Mr . William Boulware was

19 told, and he reported it to the human resources

20 department .

21 Q How do you know he reported it to the human °

22 resources department?

23 A Because we went down there when he went down Y 29 there and told .

25 Q Were you there when he went and told them?

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 284 of 296

Page 174

1 Q Did they ever say that to you? Did you ever

2 hear them say that?

3 A No . Only time that I heard them say it is

4 when they thought I wasn't there .

5 Q That's what I'm asking you, Mr . Whatley .

6 Were there times that you heard Diamond Dallas Page or

7 Chris Kanyon use the N-word about you?

8 A When they was in dressing rooms and were

9 leaving the dressing room or coming out of the

10 dressing room and you're making suggestions about,

11 well, what can be happening in the ring, you would

12 hear them when you left saying, what that nigger

13 talking about?

14 Q Who would you hear say that? Chris Kanyon

15 and Diamond Dallas Page?

16 A Different ones like that .

17 Q Anybody else you can think of?

18 A Not right off the bat .

19 Q When did that happen?

20 A During the '98-'99 -- it continued to

21 happen all the way through, but most -- most of the

22 time, '98 and '99 sessions during the wrestling .

23 4 And these were wrestlers who were making

29 these statements?

25 A They were wrestlers, yes .

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 285 of 296

Page 180 II 1 or come get security and say, hey, there's a guy in . i^ ~I 2 the ladies' room?

I 3 A Not to my knowledge .

4 4 II That's fine . Any instance that we haven't 5 talked about -- Mr . Whatley, any instance we haven't

6 talked about involving the use of the word "nigger?

7 A Only things that I could say is what I was

8 told after somebody said that it was said . The

9 earshot of hearing it or up in front of your face,

10 hearing it, had been limited to just several

11 occasions .

12 Q The ones we talked about?

13 A Yes .

14 Q Did anyone ever call you darky? That was a

15 word you used a few minutes ago .

16 A I heard the word "darky," but that was, you 17 know -- the word darky on the crew, with the people

18 that you worked with, and that because of the fact

19 that -- like I said before, that I wouldn't take

20 second citizenship to, like, for instance, a guy that 21 was -- I can't remember his name . He was one of the

22 ones in charge of lighting . Used in reference . Used

23 it in reference to me, because of the fact that we 29 were all moving out our stuff at the same time . 25 He wanted us to stop doing our job so that

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 286 of 296

Page 181 ~ ~

1 he can complete the -- completely let the -- the

2 lights down . But because of the fact that we- 4tPYO ran 1

3 the move and they wanted economically to use the

4 locals to do all the things, they were trying to get

5 us out first, so therefore he was disgusted in the a

6 fact that he had to wait, and now it's -- I had to

7 wait behind a darky too .

8 Q Do you remember his name?

9 A I . can't remember -- I tried not to remember

10 his name, but I knew that he was one of the men that

11 was in charge of when the lights went up and went

12 down, and --

13 Q Did he work for the arena,, or did he work Ii

14 for WCW?

15 A WCW .

16 Q So he was a lighting employee of WCW?

17 A WCW .

18 Q Did you complain about that?

19 A Oh, yes .

20 Q Who did you complain to? Do you recall?

21 A Oh, yes . Every instance that we did, that

22 we called, you know, I knew exactly that the person

23 that you can go to in the instance was human resources

24 department .

25 Q Do you know if human resources department

PREMIER REPORTING Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 287 of 296

EXHIBIT / ATTACHMENT

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 288 of 296

Aff

AFFIDAVIT OF HARRISON NORRIS

STATE OF GEORGIA COUNTY OF FULTON

Before the undersigned officer appeared Harrison Norris, who, after being placed under oath, says and deposes as follows :

1 .

My name is Harrison Norris . I am over eighteen (18) years of age, and I am otherwise competent to make this affidavit .

2 .

At the suggestion of a former WCW wrestler, upon leaving the military, I attended a WCW wrestling try out . I paid $250

±o tryout, and at the conclusion of the tryout, I was invited to join the WCW's six-month training program for which I paid another $3500 .

3 .

When I completed the training program, I inquired as to what WCW wanted me to do next . I was told to continue to come to the WCW training facility (the "Power Plant") on a daily basis and to follow instructions given to him by the trainers there . The Power Plant training program was disorganized and unfocused . There was no set schedule for training, and I was generally left to train myself . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 289 of 296 i

4 . After the initial six months at the Power Plant, I spent 90 percent of my time at the Power Plant was dedicated to assisting in the training of other trainees .

5 .

During the time I was at WCW, I regarded the work environment as being hostile to blacks . The use of racial slurs, the unequal treatment of blacks in their work opportunities, the fact that black wrestlers were called upon to do work that white wrestlers were not required to do all made blacks feel they were unwelcome and wanted only for the purpose or exploitation at wCw .

6 .

While I was at the Power Plant, I had many opportunities to train with an observe Darron Easterling train . Easterling could have been a star at wCW based upon his size, his look, and his work ethic .

7 .

Like many big men in wrestling, Easterling was not acrobatic in his approach . When a wrestler is as big as

Easterling, bookers typically focus on their size in story lines . Examples of successful large men, who any normal person would regard as being "clumsy" because their size are Andre The Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 290 of 296

r1t

Giant, an icon in professional wrestling, Paul White p/k/a The

~,idili., and The Wail .

B .

When WCW made decisions regarding who they would offer contracts to when the Power Plant moved in 1999, many white wrestlers of comparable or lesser skills than Eastezling were given contracts . For example, Brett Hammer, Chuck Palumbo and

Mark Jindrak were all big men who could be accused of being

"clumsy" because of their size . In my opinion, none of these men were more graceful than Easterling nor were any of them more talented . I believe, having observed the operation of WCw and the Power Plant for a nearly five years, that had Easterling been white, he would have received a contract in 1999 when the

Power Plant moved and reduced the size of its trainee group .

9 .

Bookers and agents decided the storylines the dictated the outcomes of matches, the specific outcomes of each match and the manner in which the outcome would be achieved . While the wrestlers would have little input as to how the match would be performed, the bookers always had the final say as to every aspect of the result of the matches and how they were performed . Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 291 of 296 r

I declare under penalty of perjury that the foregoing is true and cor-rect .

~// .opt Harrison Norris -2,ZI~-3 Executed on (Date)

Sworn and subscribed before me, this /~"~~~ay of 3 rum(~ 2003 n . _

Public V ,... ~S~ruX ., f.

EXPIRES ~'[-ORG '~ ~--24 2002 Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 292 of 296

EXHIBIT / ATTACHMENT

(To be scanned in place of tab) Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 293 of 296

v " a

Rewsed hlarch 28, 70LV

IV. Employee Job Profiles

CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 294 of 296 a[M .~+e :~J~2~[. 1CL?KL .NS , r .-n~.2bY~C:xvJ..Y ~ ~ r . " n . . . . lr~c-. .: S .a1:iil . a~ r . .

" Revised Maro~ 1B, 1000 Names: Avery-Nwl, Catherine (3-5239) t.llftoll' nuuci i (14- i UO) Nichols, William (3-5239) )ensen, Ralph (3-1070) Tide: Warehouse Oerk Department: Merchandise Warehouse Clerks are responsible for Fulfilling catalog merchandise orders : shipping, receiving, and pulling. They can process office comp orders and merchandise returns. They an also Fed Ex domestic, international, and Priority mail orders; and they order the supplies `or Catalog use (boxes and Pales 'Or Fed Ex and Priority mail). People can come to Warehouse C;e<

~~CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 295 of 296 ., ,' ~ .. . . e i ...... ~ . . . . .~~

~~- " Revised Mairh 18, 1000 CALL CENTER~~

Name: Cameron, Leslie Tide: Senior Catalog Operations Fulfillment Manager Department : Merchandise and Catalog Extension : 3-5219 I oversee the catalog operation; which includes Call Center, Warehouse for arena and catalog, and MACS software maintenance. I am responsible for all catalog and arena merchandise in and out of the warehouse. People can come to me for help with MACS software, catalog promotions or questions, merchandise shipments, lottery fulfillment, catalog system data extracts, and catalog reports.

Name: Collins, Pamela Title : Call Center Coordinator Department: Merchandising Extension : 3-1026 I supervise four to six customer service representatives. This includes motivating, developing their skills and encouraging them to achieve their highest potential through effective communication, assigning jcb responsibilities, controlling employee conflict and treating employer fairly and consistently . Additional responsibilities include ensuring production jobs are run In a timely manner for our catalpa business, responding to customer calls, running and analyzing the call center phone and production reports, offering suggestions on improving productivity, quality and morale for the call center operation- plus any additional assigned duties as needed. People do come to `or help with placing personal merChardisz orders, or if a fed-ex catalog order is returned undeliverable- any misdirected customer service orders or complaints .

Names: Bonhomme, Kadija (3-1026) MU1doo, Frank (3-1026) Hester, Frankesha (3-1093) Tithes: Call Center Rev Department : Call Center The call center reps are responsible for calls pertaining to WC`N merchandise orders. They deal with customer service questions concerning previously made orders.

~~CONFIDENTIAL Case 1:00-cv-01716-CC Document 125 Filed 02/24/03 Page 296 of 296 f . t i ^ 5 --1~~

~~BOBBY HARDWORK WALKER BOBBY Walker Professional Wrestler 59 Gleneagles Dr. Fayetleville, G0.~~

~~Telephone 770-716.6830~~

~~TO: ERIC BISHOFF SUB. Racial Discrimination FROM : Bobby Walker~~

~~MARCH 01,1998~~

~~DEAR SIR:~~

In the past Terry Taylor has made statements to me and others how he felt about blacks. Since he has had the top booking job, I have had nothing but problems. Ever since I talked to Terry in Orlando F7., about my future iv WCW, the problem has gotten worse. 1 feel like l lost my job because of Terry Taylor deep dislike for Blacks. I have alwas tried to talk to you about any problems. I want to know from you why I lost my job? Please contact me at 770-716-6830. I look forward to hearing from you soon . Thanks in advance for your assistance in this matter.

~~Bobby Walker.~~

~~CC: ERIC BISHOFF~~

~~WCW 009452 CONFIDENTIAL~~